ONE   HUNDRED   AND   FIFTH 

General  Assembly  of  the  Presbyterian   Church 

In  the  United  States  of  America, 
WASHINOTON,    D.   C,    MAY,    1803. 


THE  PRESBYTERIAN  CHURCH  IN   THE 


UNITED  STATES  OF  AMERICA, 

APPELLANT. 
AGAINST 


THE  REV.   CHARLES  A.  BRIGGS,  D,D., 

APPELLEE. 


Appellant's  Argument  before  the  General 

Assembly  in  support  of  the  Motion 

to  entertain  the  Appeal, 

May  25th,   1893. 


Argument  gf 

JOHN  7.  IMcCOOK, 

A  Member  of  the  Prosecuting  Committee. 


ONE    HUNDRED    AND    FIFTH 
General  Assembly  of  the  Presbyterian  Church 

In  the  United  States  of  America, 
^?VA.St^INQTON,   E).  C   MAY,  1893. 


THE  PRESBYTERIAN  CHURCH  IN  THE 


UNITED  STATES  OF  AMERICA, 

APPELLANT, 
AGAINST 


THE  REV.   CHARLES  A.  BRIGGS,  D,  Z>., 

APPELLEE. 


Appellant's  Argument  before  the  General  As- 
sembly IN  Support  of  the  Motion  to 
entertain  the  Appeal, 
May  25th,   1893. 


Argument  of 

JOHN  y.  McCOOK, 

A  Member  of  the  Prosecuting  Committee. 


J 


OHN  C.  RANKIN  CO.,  PRINTERS, 
34  CORTLANDT  ST.,  NEW  YORK. 


THE  PRESBYTERIAN  CHURCH  IN  7 HE 
UNITED   STATES  OF  AMERICA. 

APPELLANT, 
AGAINST 

THE  REV.    CHARLES  A,  BRIGGS,   D.D., 

APPELLEE. 


Appellant's  Argument  before  the  General  As- 
sembly IN  Support  of  the  Motion  to 

ENTERTAIN    THE    ApPEAL, 

May  25th,   1893. 


Moderator,  Fathers  and  Brethren  : 

All  the  preliminary  questions  involved  in  this  case 
were  fully  discussed  and  determined  by  the  General 
Assembly  of  1892. 

Among  the  questions  thus  determined  are  the  fol- 
lowing : 

1.  That  the  appeal  was  taken  by  the  Presbyterian 
Church  in  the  United  States  of  America,  as  an  original 
party. 

2.  That  the  original  party  is  represented  by  the 
Prosecuting  Committee. 

3.  That  such  committee  is  a  Prosecuting  Committee 
appointed  under  Section  11  of  the  Book  of  Discipline. 

4.  The  original  party,  by  its  Prosecuting  Committee, 
has  the  right  in  this  case,  to  take  such  an  appeal  from 
the  Presbytery  directly  to  the  General  Assembly. 


5.     That  such  an  appeal  is  regular  and  in  order. 

Under  a  strict  interpretation  of  the  Constitution  and 
the  precedents  established  by  the  General  Assembly, 
as  the  Supreme  Court  of  our  Church,  these  and  some 
other  questions  passed  upon  by  the  last  Assembly  are 
res  adjudicata  and  should  not  be  again  discussed. 

The  law  of  the  Presbyterian  Church  is,  that  it  is  not 
competent  for  one  General  Assembly  to  revise  or  remew 
any  proceedings  of  a  previous  Assembly  taken  in  a 
judicial  case.  (See  Appeal  of  Lowry,  Minutes,  1824, 
page  115,  Case  of  Worrell,  Minutes,  1864,  page  398.) 

I  must  take  a  few  minutes  of  your  valuable  time, 
to  deal  with  the  technical  points  raised  by  the 
Appellee. 

The  Appellee's  argument  that  the  Appellant  must 
prove  himself  an  aggrieved  party,  though  brilliant  in 
detail  and  interesting  in  method,  was  wholly  irrelevant, 
as  he  himself  frankly  stated  at  the  outset.  In  the  new 
Book  of  Discipline,  he  tells  us,  the  term  "original 
party"  replaces  that  of  "aggrieved  party  "  in  the  old 
Book.  It  is  fair  to  presume  that  this  change  was 
made  designedly,  but  in  Viwj  event  the  revised  Book 
says  nothing  of  the  "aggrieved  party."  Section  94  of 
the  new  Book  gives  the  right  of  appeal  to  ' '  either  of 
the  original  parties,"  and  gives  it  as  an  unquestioned 
constitutional  right. 

The  Appellee  enunciated  a  strange  principle  when 
he  informed  us  that  a  debision  in  a  judicial  case  is  not 
a  decision  as  to  doctrine.  He  intimated  that  litigation 
does  not  lead  to  final  interpretation  of  law.  Granting 
that  this  court  cannot  give  a  final  interpretation, 
nothing  could  be  easier  or  simpler  than  for  this  Assem- 
bly, in  its  legislative  capacity,  by  deliverance,  to  affirm 
the  decision  made  by  the  Assembly  as  a  Court.  But 
the  general  statement  is  erroneous.  The  Supreme 
Court  of  the  United  States,    by  the    Constitution,    is 


made  the  final  interpreter  of  tlie  Constitution.  Cases 
are  constantly  carried  thither  to  secure  a  definitive 
and  final  interpretation.  The  General  Assembly  is 
made  the  final  interpreter  of  our  Constitution.  It  has 
almost  invariably  refused  to  decide  principles,  in  tJiesi, 
requiring  a  concrete  case  upon  which  to  render  a 
decision.  True,  the  Gfeneral  Assembly,  like  the  United 
States  Supreme  Court,  may  err ;  but  its  decision,  like 
that  of  the  United  States  Supreme  Court,  is  final,  is 
law,  and  must  be  submitted  to. 

The  Appellee  said  that  the  decision  of  the  New  York 
Presbytery  does  not  bind  the  Church.  True  ;  but  if 
ignored  it  will  bind  the  Church,  for  it  permits  the  doc- 
trines alleged  to  be  heretical,  to  be  preached  within  the 
bounds  of  that  Presbytery  without  rebuke.  We  are 
not  Congregationalists  ;  we  are  Presbyterians.  The 
New  York  Presbytery  is  not  like  the  Manhattan  Con- 
gregational Association ;  it  is  a  part  of  the  one  great 
Church,  whose  representatives  are  assembled  here.  Its 
decisions,  touching  doctrine,  affect  the  whole  Church 
from  the  Atlantic  to  the  Pacific. 

The  ingenious  argument  of  the  Appellee  respecting 
the  use  of  the  terms  ''decision"  and  "final  judgment" 
in  the  title  of  the  ap^Deal  has  very  little  to  do  with  the 
case.  In  so  far  as  the  term  "final  judgment"  is  con- 
cerned, it  matters  not  whether  it  be  confined  to  the 
mere  assertion  of  acquittal,  or  be  extended,  as  the 
Presbytery  evidently  intended,  and  as  the  Committee 
of  Prosecution  thinks  it  should  be,  to  cover  the  whole 
judgment  rendered  and  recorded  as  the  judgment  of 
the  New  York  Presbytery  on  January  9,  1893.  In  this 
discussion  by  the  Appellee,  Section  95  .of  the  Book  of 
Discipline  was  not  read  to  you.  That  section  gives, 
among  other  grounds  of  appeal,  the  following :  "Has- 
tening to  a  decision  before  the  testimon}^  is  fully  taken, 
and  mistake  or  injustice  in  the  decision.''''  All  that 
portion  of  the  appeal  against  which  the  Appellee  pro- 


6 

tested  so  earnestly  is  relevant.  While  tlie  appeal 
itself,  as  you  will  see  from  page  4  of  the  printed  record 
placed  in  your  hands,  is  from  the  final  judgment  only, 
yet  according  to  Section  95,  all  errors,  all  actions  in 
any  portion  of  the  proceedings  from  their  inception,  to 
the  record  of  the  final  judgment,  are  proper  grounds 
for  appeal.  By  reference  to  the  printed  record,  pages 
160  and  163,  you  will  see  that  the  entire  report  of  "the 
Committee  appointed  to  bring  in  the  result  of  the  vote 
and  the  judgment  of  the  Judicatory"  was  accepted, 
adopted  in  its  several  parts,  then  as  a  whole,  and  that 
on  the  9th  day  of  January,  1893,  the  report  was  de- 
clared to  be  the  judgment  of  the  court,  and  was  entered 
accordingly. 

After  glancing  at  the  minutes  of  the  meeting  of  the 
Presbytery  of  New  York,  held  on  December  30,  1892 
(printed  record,  pages  137-8),  a  meeting  from  which, 
under  the  provisions  of  Section  23  of  the  Book  of  Disci- 
pline, the  parties  and  all  other  persons  not  members  of 
the  body  were  excluded,  you  will  see  that  the  acts 
there  recorded  do  not  fix  the  time,  from  which  the  ten 
days  for  giving  notice  of  appeal  under  Section  96  runs. 
The  minutes  do  not  indicate  that  the  result  of  the  vote 
was  made  known ;  it  is  not  recorded  as  a  part  of  the 
proceedings  of  the  meeting.  A  committee  was  ap- 
pointed to  bring  in  the  result  of  the  vote  and  the  judg- 
ment of  the  Judicatory.  The  parties  were  again  admit- 
ted to  the  Judicatory  on  January  9th,  after  the  report 
of  the  Committee  had  been  read,  accepted,  adopted, 
and  entered  upon  the  minutes  as  the  final  judgment  of 
the  Judicatory  (printed  record,  pages  160,  163,  164). 
The  parties  were  then  re-admitted  to  the  court,  and  the 
final  judgment,  as  entered,  was  made  known  to  them. 

Section  96  of  the  Book  of  Discipline  provides  that 
"  Written  notice  of  appeal,  with  specifications  of  the 
errors  alleged,  shall  be  given  within  ten  days  after  the 
judgment  has  been  rendered."     Within  ten  days  after 


tlie  judgment  was  entered  in  this  case  and  made  known 
to  the  parties,  written  notice  of  appeal  was  given. 

In  view  of  these  facts,  I  ask,  is  it  frank,  is  it  fair,  is 
it  candid  to  suggest  that  this  appeal  was  not  taken  in 
due  time?  However,  this  quibble,  raised  by  the 
Appellee,  is  not  relevant  or  material  now,  for  both  the 
majority  and  minority  of  the  Judicial  Committee  have 
reported  the  appeal  to  be  in  order,  and  this  Assembly 
has  already — 

'^Resolved,  That  the  General  Assembly  finds  that 
due  notice  of  the  appeal  in  this  case  has  been  given, 
and  that  the  appeal  and  specifications  of  the  errors 
alleged  have  been  filed  in  due  time  and  that  the  ap- 
peal is  in  order  in  accordance  with  the  provisions  of 
the  Book  of  Discipline." 

I  should  not  have  taken  a  second  of  your  time  with 
these  details,  but  I  felt  it  was  necessary  to  show  how 
irrelevant  to  the  question  now  before  the  house,  was 
the  long  discussion  of  preliminary  points,  with  which 
the  Appellee  favored  us  during  the  afternoon  session  of 
yesterday,  all  of  which  points  have  been  definitely 
settled  in  this  case  by  this  or  the  last  Assembly.  Most, 
if  not  all,  of  these  preliminary  questions  discussed  by 
the  Appellee  yesterday  are  now  res  adjudicata  in  this 
case,  and  should  not  engage  your  attention  for  a 
moment. 

But  as  the  Appellee  in  this  case,  has  persistently 
urged  the  contrary  view,  in  all  the  Courts  of  our  Church, 
out  of  abundant  caution  and  so  that  no  duty  towards 
the  Church  at  large,  which  the  Prosecuting  Committee 
represents,  may  be  neglected  or  overlooked,  the  fol- 
lowing considerations  are  presented. 

Preliminary   Suggestions. 

The  Judicial  Committee  and  the  minority  thereof, 
having  reported  that  the  Appeal  of  the  Presbyterian 


8 

Church  in  the  United  States  of  America,  Appellant, 
against  the  Rev.  Charles  A.  Briggs,  D.  D.,  Appellee,  is 
in  order,  the  only  question  now  before  the  Assembly, 
sitting  as  a  Court,  is  whether  the  Appeal  shall  be 
entertained. 

This  is  a  technical  legal  question  which  the  members 
of  the  Assembly  must  determine  by  bringing  their  in- 
telligence and  common  sense  to  bear,  in  the  interpre- 
tation of  a  few  clearly  expressed  sections  of  the  Book 
of  Discipline  and  of  the  Form  of  Government  of  the 
Church. 

These  sections  now  to  be  referred  to,  do  not  contain 
words  of  double  meaning,  nor  do  they  leave  any  one 
who  studies  them,  in  uncertainty  as  to  what  was  meant 
by  the  persons  who  drafted  the  sections  referred  to,  or 
by  those  who  voted  to  make  them  a  part  of  the  Con- 
stitution of  the  Presbyterian  Church  in  the  United 
States  of  America. 

Every  Minister  and  Elder,  a  member  of  this  Assem- 
bly, at  the  time  of  his  ordination,  solemnly  asserted 
that  he  approved  of  the  Government  and  Discipline 
of  the  Presbyterian  Church  in  the  United  States. 

The  time  has  come,  when,  as  Commissioners  rep- 
resenting your  respective  Presbyteries,  you  are  brought 
face  to  face  with  a  great  crisis  in  the  affairs  of  our 
Church.  And  it  behooves  each  one  to  give  full  weight 
and  consideration  to  the  obligation  assumed,  when  that 
ordination  vow  was  taken,  and  without  fear  or  favor,  to 
see  to  it  that  his  duty  in  this  behalf  is  fully  performed. 

The  proceedings  now  to  be  taken  in  this  case  must 
be  conducted  under  the  provisions  of  two  or  three 
sections  of  the  Form  of  Government,  and  a  few  sec- 
tions of  the  Book  of  Discipline. 

The  Book  of  Discipline. 
This  Book  of  Discipline  has  been  part  of  the  Consti- 


9 

tution  of  tlie  Presbyterian  Church  for  nearly  ten  years, 
and  is  the  controlling  statute  which  determines  what  is 
constitutional  and  what  is  or  is  not  lawful,  in  the  pro- 
cedure with  which  we  are  now  to  deal.  This  Book  of 
Discipline  was  not  adopted  by  the  Presbyterian  Church 
to  cover  this  case,  or  any  particular  case,  but  its  pro- 
visions are  to  be  applied  in  exact  equity  and  fairness 
to  all  cases  where  the  power  of  discipline  may  be  in- 
voked, to  secure  the  results  which  the  2d  section  of 
the  Book  of  Discipline  so  well  describes  as  follows : 
'*  2.  The  ends  of  Discipline  are  the  maintenance  of  the 
''truth,  the  vindication  of  the  authority  and  honor  of 
''  Christ,  the  removal  of  offences,  the  promotion  of  the 
''  purity  and  edification  of  the  Church,  and  the  spirit- 
*'  ual  good  of  offenders." 

Attempts  to  Discredit  the  Book. 

It  has  been  popular  of  late,  in  certain  quarters,  to 
cast  reflections  upon  this  Book  of  Discipline  and  to  dis- 
credit it.  Whether  its  provisions  have  been  wisely  or 
unwisely  adopted  we  need  not  now  discuss.  It  is  the 
law  of  the  Church,  which  must  control  in  all  matters 
of  discipline.  Even  if  some  of  its  provisions  should 
seem  unwise,  to  those  who  are  not  likely  to  be  satisfied 
with  the  results  which  naturally  follow  from  a  clear, 
definite  and  logical  enforcement  of  the  same,  yet  it  is  a 
part  of  the  Constitution  of  our  Church.  Those  who 
still  honor  and  respect  that  Constitution,  and  their 
obligation  to  it,  assumed  when  they  took  their 
ordination  vow,  will,  I  am  sure,  give  their  voices  and 
votes  in  favor  of  a  proper  enforcement  of  its  provisions. 

The  Old  Book  and  Precedents  thereunder  are 
NO  longer  Authoritative. 

It  should  be  understood  from  the  first,  that  the  pro- 
visions of  the  old  Book  of  Discipline,  in  so  far  as  they 
have  not  been  re-enacted  in  the  new  Book,  and  the 


10 

precedents  based  thereon,  have  at  this  time,  no  force 
or  effect  whatever  as  law  or  ^Drecedents  in  the  Courts 
of  our  Church. 

Plan  and  Purpose  of  the  Eevised  Book. 

The  intention  of  the  committee,  which  so  deliberately 
and  skillfully  drafted  the  present  Book  of  Discipline,  is 
perfectly  evident  to  those  who  study  its  provisions, 
carefully  and  without  prejudice.  That  committee  be- 
gan its  labors  in  1878,  and  continued  the  study  and 
work  of  preparation  until  the  Assembly  of  1884.  The 
idea  of  the  Committee  was  to  make  the  enforcement  of 
discipline  effective,and  at  the  same  time,  by  the  provisions 
of  the  Book,  to  discourage  unnecessary  or  litigious  pro- 
ceedings. The  plan  evidently  was  to  do  away  with  the 
undesirable  and  often  irresponsible  charges  which  arose 
under  the  Common  Fame  clause  of  the  old  Book. 

As  former  trials  had  in  more  than  one  instance 
aroused  strong  personal  feeling  among  members  of  the 
same  Presbytery,  it  was  determined,  if  possible,  to 
prevent  the  recurrence  in  the  future  of  such  a  condition 
of  affairs. 

To  remove  the  personal  element  as  far  as  possible, 
it  was  provided  by  Sections  6  and  10  of  the  Book  of 
Discipline  that  when  a  judicatory  finds  it  necessary  for 
the  ends  of  discipline  to  investigate  an  alleged  offence 
and  when  the  prosecution  is  initiated  by  a  judicatory, 
as  in  this  case,  the  proceedings  shall  be  instituted  in 
the  name  of  the  Presbyterian  Church  in  the  United 
States  of  America  and  that  the  Church  at  large  shall  he 
the  prosecutor  and  an  original  party. 

To  place  the  proceedings  on  the  highest  possible 
plane,  the  plan  of  the  Book  was  to  make  all  of  the 
members  of  the  judicatory  sitting  as  a  Court,  Judges, 
in  the  highest  and  best  meaning  of  that  term.  They 
were  not  to  be  advocates  or  partisans.    Provision  was 


11 

also  made  in  Section  11  that  when  the  prosecution  is 
initiated  by  a  judicatory,  a  committee,  known  as  the 
Prosecuting  Committee,  shall  be  appointed  to  conduct 
the  prosecution  in  all  its  stages,  in  whatever  judicatory, 
until  the  final  issue  be  reached.  The  members  of  such 
a  committee,  when  appointed,  are,  by  that  act,  removed 
from  the  body  of  the  Court,  as  Judges.  Like  the 
minister  or  elder  who  may  prepare  or  exhibit  the  cause 
of  the  accused,  they  are  not  permitted  to  sit  in  judg- 
ment in  the  case. 

The  intention  of  these  provisions  of  the  Book  of 
Discipline  was  evidently  to  place  the  members  of  a 
judicatory  sitting  as  a  Court,  in  a  purely  judicial  atti- 
tude, and  to  preclude  any  one  who  might  exhibit 
prejudice  or  undue  zeal,  because  of  his  activity  in  con- 
ducting the  prosecution,  from  participating  in  any  way 
in  the  decisions  of  the  Court. 

The  Provisions  of  the  Book  Safeguard  and 
Protect  all  Interests. 

The  result  of  this  is  that  the  interests  of  every 
minister,  ofiicer  and  member  of  the  Church,  subject  to 
discipline  under  the  provisions  of  the  Book,  are  pro- 
tected in  the  most  careful  way,  and  proceedings  are 
not  so  likely  to  be  instituted  by  individual  prosecutors 
as  under  the  old  Book.  If,  however,  proceedings  are 
instituted  by  a  judicatory,  and  it  finds,  after  an  exam- 
ination by  a  special  committee,  that  it  is  necessary 
for  the  ends  of  discipline  to  investigate  the  alleged 
offence,  every  possible  safeguard  and  protection  has 
been  thrown  about  the  interests  of  the  parties  con- 
cerned. 

The  Book  of  Discipline  of  the  Presbyterian  Church 
is  a  part  of  its  Constitution.  All  ministers  and  officers 
of  the  Church,  by  their  ordination  vows  have  approved 
of  and  accepted  it  as  such  and  have  committed  them- 


12 

selves  to  its  support  and  enforcement.  When  we  know 
what  the  provisions  of  the  Book  are  and  apply  them  to 
the  facts  of  a  particular  case,  every  member  of  this 
Assembly  should  be  able  to  reach  a  wise  and  just  con- 
clusion, and  to  determine  what  his  duty  is  under  the 
circumstances. 

The  Book  of  Discipline,  Sec.  94,  provides  as  follows  : 

*  'An  Appeal  is  the  removal  of  a  judicial  case,  by  a 
''written  representation,  from  an  inferior  to  a  superior 
"judicatory;  and  may  be  taken,  by  either  of  the 
*' original  parties,  from  the  final  judgment  of  the 
*' lower  judicatory.  These  parties  shall  be  called 
*' Appellant  and  Appellee." 

No  question  has  been  raised  or  can  be  raised  as  to 
the  fact  that  the  judgment  entered  in  this  matter  by 
the  Presbytery  of  New  York,  on  January  9,  1893,  and 
now  appealed  from,  is  the  final  judgment  of  the  lower 
judicatory  in  this  case.  This  having  been  determined, 
and  the  fact  is,  I  believe,  unquestioned,  the  only  other 
important  point  in  this  section,  requiring  attention  at 
this  time,  is  whether  the  appeal  has  been  taken  by 
either  of  the  original  parties. 

Original  Parties. 
To  learn  who  are  the  original  parties  we  must  turn 
to  Section  10  of  the  Book  of  Discipline,  which  is  as 
follows  :  ''10.  When  the  prosecution  is  initiated  by  a 
"judicatory,  the  Presbyterian  Church  in  the  United 
"States  of  America  shall  be  the  prosecutor,  and  an 
"  original  party  ;  in  all  other  cases,  the  individual  pros- 
"  ecutor  shall  be  an  original  party." 

Such  an  investigation  was  made  in  this  case  by  a 
special  committee.  It  made  a  full  examination  and 
report,  which  was  discussed  in  Presbytery.  The  recom- 
mendations of  the  committee  were  adopted,  and  a 
judicial  investigation  was  ordered,  before  the  Prose- 


13 

cuting  Committee  had  been  appointed.  There  is  no 
question  as  to  who  is  the  original  party.  This  section 
(10)  makes  it  mandatory  that  the  Presbyterian  Church 
in  the  United  States  of  America  shall  he  the  prosecutor 
and  an  original  party. 

Prosecuting  Committees. 
Within  the  bounds  of  a  Presbytery  which  is  sitting 
in  a  judicial  capacity,  the  Cliurch  at  large  can  act 
only  through  a  committee  or  as  represented  by  a  com- 
mittee. This  fact  was  taken  into  account  in  preparing 
the  Book  of  Discipline,  and  provision  was  made 
therefor,  in  Section  11,  as  follows : 

**  When  the  prosecution  is  initiated  by  a  judicatory, 
''  it  shall  appoint  one  or  more  of  its  own  members  a 
^^  Committee  to  conduct  the  prosecution  in  all  its 
'*  stages  in  whatever  judicatory,  until  the  final  issue  be 
"reached;  provided,  that  any  appellate  judicatory 
*' before  which  the  case  is  pending  shall,  if  desired 
"  by  the  prosecuting  committee,  appoint  one  or  more 
"of  its  own  members  to  assist  in  the  prosecution, 
"upon  the  nomination  of  the  prosecuting  committee." 

The  provisions  of  this  section  are  also  mandatory. 
It  does  not  say  that  the  judicatory  may  in  its  dis- 
cretion, or  if  necessary  appoint,  but  it  is  emphatic  and 
declares  that  it  shall  appoint  a  committee  to  conduct 
the  prosecution,  in  all  its  stages,  in  lohatever  judica- 
tor}^  until  the  final  issue  be  reached. 

Notice,  here,  that  this  is  not  a  temporary  committee, 
to  be  quickly  created  and  quickly  discharged.  Such 
a  committee  is,  in  no  sense,  a  "Judicial  Committee" 
to  digest  and  arrange  papers,  etc.,  such  as  is  provided 
for  by  Rule  XLI.  of  the  General  Rules  for  Judicatories, 
the  members  of  which  may  sit  and  vote  in  the  case  in 
which  they  act.  The  prosecuting  committee  provided 
for  by  Section  11  of  the  Book  of  Discipline  cannot  be 
appointed  until  the  prosecution   has  been  initiated 


14 

by  a  judicatory.  And  this,  as  provided  in  Section 
6,  must  be  after  the  judicatory  has  found  it  necessary 
for  the  ends  of  discipline  to  investigate  the  alleged 
offence. 

Status  of  the  Prosecuting  Committee. 
Throughout  the  conduct  of  this  case  the  position  of 
the  Prosecuting  Committee  has  been  attacked.  Al- 
though the  status  of  the  Committee  was  fully  and 
finally  determined  by  the  last  General  Assembly,  this 
question  has  been  again  raised  by  the  Appellee,  in  his 
argument  in  opposition  to  the  entertainment  of  the 
Appeal. 

Under  these  circumstances  it  becomes  important  that 
the  members  of  this  Assembly  should  have  a  complete 
understanding  of  what  the  Presbytery  of  New  York, 
the  Synod  of  New  York  and  the  General  Assembly 
have  done  with  reference  to  the  status  of  the  Prosecu- 
ting Committee  as  representing  the  Presbyterian 
Church  in  the  United  States  of  America,  the  Appellant 
in  this  case.    The  following  are  the  facts  : 

Action  of  New  York  Presbytery  as  to  the 
Prosecuting  Committee. 

At  a  meeting  of  the  Presbytery  of  New  York  in 
April,  1891,  a  committee  was  appointed  to  consider 
the  Inaugural  Address  of  the  Appellee  in  its  relation  to 
the  Confession  of  Faith.  This  Committee,  in  its  report, 
recommended  "  that  the  Presbytery  enter  at  once  upon 
the  judicial  investigation  of  the  case,"  and  the  Presby- 
tery having  adopted  the  recommendation,  the  report 
was  adopted.  That  was  the  inception  of  the  case. 
The  Prosecuting  Committee,  of  which  the  Bev.  G.  W. 
F.  Birch,  D.  D.,  is  Chairman,  was  appointed  at  the 
meeting  of  the  Presbytery  of  New  York  held  in  May, 
1891,  "  to  arrange  and  prepare  the  necessary  proceed- 
ings appropriate  in  the  case  of  Dr.  Briggs."  The  in- 
tent of  the   Presbytery  in  appointing  the  Committee 


15 

was  to  make  it  such  a  Committee  as  is  contemplated  by 
Section  11  of  the  Book  of  Discipline — namely,  a  Pros- 
ecuting Committee. 

An  appeal  was  made  to  you  this  morning  by  the  Ap- 
pellee, on  the  ground  that  he  had  not  been  courteously 
or  fairly  dealt  with  by  this  Committee.  This  Committee 
has  no  explanation  or  apology  to  make  for  anything 
that  it  has  done,  as  it  believes,  under  the  instruction 
and  provision  of  the  Constitution  of  the  Presbyterian 
Church  in  the  United  States  of  America,  and  in  pro- 
tecting the  interests  of  that  Church  against  what  is 
believed  to  be  fundamental  error.  Although  we  have 
been  so  often  criticised,  in  the  public  press  and  else- 
where, I  wish  to  call  the  attention,  of  this  Assembly  to 
the  fact,  that  never,  except  upon  the  floor  of  the  Courts 
of  this  Church,  so  far  as  I  know,  has  any  member  of 
this  Committee  given  public  expression  to  his  views  or 
ideas.  We  have  held  that  we  represented  the  Presby- 
terian Church  in  the  United  States  of  America,  as  a 
whole,  and  if  it  appeared  to  be  for  the  interest  of  any 
one  to  criticise  or  blame  us,  that  we  would  have  to  take 
the  blame,  until  the  final  issue  is  reached,  and  the 
Presbyterian  Church  determines  whether  we  have  or 
have  not  done  our  duty.  But  the  suggestion  was  made 
by  him  that  courtesy  had  not  been  extended  to  the 
Appellee  in  this  matter.  It  is  only  right  and  fair  that 
you  should  know  (everybody  in  the  Presbytery  of 
JSTew  York  knows  it,  for  the  letter  I  am  about  to  read 
has  been  read  in  the  hearing  of  that  Presbytery),  that 
before  a  single  step  was  taken  by  the  Committee 
appointed  by  the  Presbytery  to  consider  the  Inaugural 
Address,  the  Chairman  of  that  Committee  wrote  to  the 
Rev.  Dr.  Briggs,  suggesting  that  meetings  of  the  Com- 
mittee would  be  held  at  a  certain  time  and  place,  and 
asking  that  Dr.  Briggs  would  join  them,  for  conference, 
before  any  action  was  taken.  I  will  now  read  to  you, 
without  comment,  the  answer  received  by  the  Commit- 
tee to  their  invitation,  and  then  I  shall  let  the  matter 
pass. 


16 

^'120  West  93d  Street, 

''  New  York,  April  24,  1891. 
^'  The  Rev.  G.  W.  F.  Birch,  D.  D. 
''My  dear  Sir: 

''  In  resj)onse  to  your  letter  of  April  23d, 
''  inviting  me  to  be  i:)resent  at  the  next  meeting  of  a 
''  committee,  of  which  you  are  Chairman,  I  beg  leave 
''  to  say  :  (1)  The  state  of  my  health  will  not  admit  of 
''  my  compliance  with  your  invitation,  and  (2)  If  I 
*'  were  in  good  health,  I  would  still  be  obliged  to 
''  decline,  for  the  reason  that  it  would  seem  that  your 
' '  committee  were  appointed  to  consider  my  '  Inaugural 
''  Address,'  and  not  to  consider  any  explanations  of  it 
' '  I  might  be  willing  to  make. 

"  Yours  resiDectfully, 

''  C.  A.  Briggs." 

The  Presbytery  of  New  York  has  regarded  the  said 
Committee,  at  all  times,  as  a  Prosecuting  Committee, 
appointed  in  accordance  with  Section  11  of  the  Book  of 
Discipline,  as  is  evidenced  by  the  following  action  and 
extracts  from  its  records. 

The  Presbytery  acceiDted  and  adopted  the  charges 
and  specifications  prepared  by  the  Committee  and 
entered  upon  the  trial,  with  this  Committee  acting  as 
a  Committee  of  Prosecution,  and  the  Appellee  himself 
agreed  in  open  session  of  the  Presbytery,  on  October 
6,  1891,  that  he  would  so  proceed  to  trial,  and  that 
arrangement  is  recorded  at  page  479  of  Volume  13  of 
the  Records  of  the  Presbytery  of  New  York,  as  follows : 

"  By  agreement  between  Dr.  Briggs  and  the  Prose- 
cuting Committee  '^  it  was  resolved  that  the  4th  day  of 
November,  1891,  at  10  a.  m.,  be  fixed  as  the  day  on 
which  the  citation  is  returnable  and  that  the  citation 


*  The  italics  throughout,  unless  otherwise  indicated,  are  mine. — 
J.  J.  McC. 


17 

be  issued  for  that  date,  in  accordance  with  Section  19 
of  the  Book  of  Discipline." 

The  following  is  an  extract  from  the  citation  served 
npon  Dr.  Briggs  by  the  Moderator,  in  the  presence 
of  the  Presbytery  of  New  York,  on  September  6,  1891 : 

''  Citation. 

"  You  are  hereby  furnished  with  a  copy  of  the 
charges  and  specifications  presented  to  the  Presbytery 
on  the  5th  day  of  October,  1891,  by  the  Committee 
of  Prosecution  appointed  by  the  Presbytery  of  New 
York  at  its  meeting  in  May  last,  which  report,  with 
its  accompanying  recommendations,  were  accepted  and 
adopted  by  this  Presbytery  on  the  said  5th  day  of 
October,  1891. 

'' (Signed)  John  C.  Bliss,  Moderator." 

The  certificate  accompanying  the  charges  and  speci- 
fications served  upon  Dr.  Briggs  by  the  Moderator,  in 
the  presence  of  the  Presbytery,  on  October  6,  1891,  is 
as  follows : 

"I  hereby  certify  that  the  foregoing  is  an  authen- 
tic copy  of  the  charges  and  specifications  against 
Prof.  Charles  A.  Briggs,  which  tlie  Presbytery  of  New 
Yorli  has  ordered  shall  he  prosecuted. 

"(Signed)  John  C.  Bliss,  Moderator." 

"October  6,  1891." 

The  following  quotations  are  from  Volume  13  of 
the  Records  of  the  Presbytery  of  New  York,  and 
fully  indicate  the  status  of  the  Prosecuting  Committee 
and  the  purpose  and  intent  of  the  Presbytery  in 
appointing  the  same. 

Page  434.  ''  The  time  having  come  in  the  order  of 
business  to  receive  the  report  of  the  Committee  of 
Prosecution  in  the  case  of  the  Rev.  Charles  A.  Briggs, 
Rev.  George  Alexander  asked  leave  to  introduce," 
etc.,  and  he  introduced  a  paper. 


18 

Also  on  page  434.  "Objection  was  made  on  the 
ground  that  Dr.  Birch,  as  Chairman  of  the  Committee 
of  Prosecution,  had  the  floor,  and  that  the  motion  to 
susi3end  the  order  of  the  day  could  not  be  introduced." 

Page  435.  "The  Committee  of  Prosecution  in  the 
case  of  Dr.  Briggs,  appointed  in  compliance  loith  Sec- 
tion 11  of  the  Book  of  Discipline,  at  the  meeting  of 
Presbj'tery  in  May  last,  reported  as  follows"  : 

The  following  is  an  extract  from  the  paper  proposed 
by  the  Rev.  George  Alexander,  D.  D.,  as  a  substitute  for 
the  recommendation  contained  in  the  report  of  the 
Prosecuting  Committee  : 

Page  463.  "  Whereas,  the  Presbytery  of  New  York, 
at  its  meeting  in  May  last,  on  account  of  utterances 
contained  in  an  inaugural  address  delivered  January 
20th,  1891,  appointed  a  committee  to  formulate  charges 
against  the  author  of  that  address,  the  Rev.  Charles 
A.  Briggs,  D.  D." 

Page  463.  The  report  made  by  the  Prosecuting 
Committee  containing  the  charges  and  specifications 
"was  accepted  by  the  Presbytery." 

Page  470.  The  recommendation  in  the  report  of  the 
Prosecuting  Committee  in  the  matter  of  Dr.  Briggs 
was  adopted. 

During  the  proceedings  of  the  Presbytery  of  New 
York,  on  November  4th,  1891,  when  the  case  was  dis- 
missed, the  minutes,  Yol.  14,  page  90,  show  that  the 
following  action  was  taken  : 

"At  this  point  (after  the  reading  of  Dr.  Briggs'  Re- 
sponse), the  question  as  to  the  status  of  the  Prosecut- 
ing Committee  was  raised.  The  Moderator  decided 
that  the  Committee  was  properly  a  Committee  of  Pros- 
ecution in  view  of  the  previous  action  of  Presbytery  as 
recorded,  and  represented  the  Presbyterian  Church  in 
the  United  States  of  America,  and  was  in  the  house  as 


19 

an  original  party  in  the  case,  under  provision  of  Sec- 
tion 10  of  the  Book  of  Discipline,  and  is  now  virtually 
independent  of  Presbytery." 

''An  appeal  was  taken  from  the  decision  of  the 
Moderator.  The  question  was  divided.  The  Modera- 
tor was  sustained  in  the  point  that  the  Committee  was 
m  the  house  as  a  properly  appointed  Committee  of 
Prosecution.  The  Moderator  was  also  sustained  in  the 
point  that  the  Committee  as  representing  the  Presby- 
terian Church  in  the  United  States  of  America  was  an 
original  party  in  the  Complaint." 

This  action  of  the  Judicatory  in  sustaining  the 
Moderator  upon  the  appeal  from  his  decision  as  to  the 
status  of  the  Prosecuting  Committee  is  itself  conclu- 
sive evidence  of  the  intent  of  the  Presbytery  in  ap- 
pointing and  recognizing  the  Prosecuting  Committee 
as  such. 

The  above  ruling  of  the  Moderator  of  the  Presbytery 
of  New  York  as  to  the  status  of  the  Prosecuting  Com- 
mittee, which  was  appealed  from  and  sustained  by  the 
Presbytery,  was  undoubtedly  in  accordance  with  the 
provisions  of  the  Book  of  Discipline,  under  which  the 
Presbytery  was  then  acting  as  a  judicatory. 

Approval  by  the  Synod  of  New  York  of  the 
Presbytery's  Records. 
An  examination  of  Volume  13  of  the  Records  of  the 
Presbytery  of  New  York,  covering  all  the  proceedings 
above  referred  to,  except  the  last,  shows  at  page  483 
that  the  Synod  of  New  York  during  its  session  held  at 
Watertown,  New  York,  on  October,  22  1891,  examined 
and  approved  of  the  said  record.  The  said  Synod 
has  therefore  approved  of  the  appointment  of  this  Com- 
mittee and  of  its  action  as  a  Committee  of  Prosecution 
up  to  October  22,  1891.  The  period  covers  the  appoint- 
ment of  the  Prosecuting  Committee,  the  adoption  of  its 
report,  including  the  charges  and  specifications,  the  ser- 


20 

vice  of  citation  by  the  Moderator  upon  Dr.  Briggs,  and 
Ms  agreement  with  the  Prosecuting  Committee  in  open 
Presbytery  as  to  the  day  upon  which  tlie  citation  was 
to  be  returnable. 

Relation  of  a  Prosecuting  Committee  to  the 
Church  at  Large. 
The  mere  assignment  or  appointment  of  certain  mem- 
bers of  the  Presbytery  to  act  as  a  Prosecuting  Com- 
mittee, when  once  made,  under  Section  11  of  the  Book 
of  Discipline,  gives  that  Committee  a  relation  to  the 
Church  at  large.  It  acts  on  behalf  of  the  Presbyterian 
Church  in  the  United  States  of  America.  It  represents 
the  entire  Church,  and,  as  such,  is  an  original  party. 
In  its  representative  capacity  it  is  the  prosecutor  and 
cannot  be  disturbed  by  the  Presbytery. 

If  this  were  not  so,  the  Church  at  large  could  not 
take  and  perfect  an  appeal,  although  it  is  one  of  the 
original  parties.  Yet  all  proceedings  initiated  by  a 
judicatory,  as  in  this  case,  must  he  instituted  in  the 
name  of  the  Church,  in  compliance  with  Section  10  of 
the  Book  of  Discipline. 

Whenever  a  judicial  process  is  initiated  by  the 
judicatory,  special  conditions  arise.  The  Presbytery 
is  placed  in  extraordinary  and  exceptional  relations  to 
the  Church  at  large,  in  that  the  Presbyterian  Church 
becomes  a  prosecutor  at  its  bar  ;  for  such  exceptional 
relations,  exceptional  provisions  are  needed,  and  they 
have  been  made.  The  Presbytery  ought  not  to  be 
judge  and  prosecutor  at  the  same  time. 

To  obviate  this  difficulty,  the  Constitution,  Book  of 
Discipline,  Section  10,  requires  the  Presbytery  to  ap- 
point a  committee  to  conduct  the  prosecution  in  the 
name  of  the  Presbyterian  Church  in  the  United  States 
of  America.  This  committee,  not  the  Presbytery, 
represents  the  whole  Church.  It  is  not  dependent  for 
its  existence  on  the  will  of  the  Presbytery.     It   does 


21 

not  derive  its  powers  from  the  will  of  the  Presbytery. 
It  is  not  limited  in  its  action  by  the  will  of  the  Pres- 
bytery. This  is  evident  from  the  following  consid- 
erations : 

1st.  The  act  of  Presbytery  in  appointing  the  com- 
mittee of  prosecution  is  ministerial  only.  The  com- 
mittee of  prosecution  is  in  no  sense  the  creature  of 
Presbytery.  It  owes  its  existence  to  the  Constitution 
itself.  The  Presbytery  has  no  discretion  in  the  mat- 
ter. Having  determined  to  initiate  judicial  process,  it 
is  under  obligation  to  appoint  the  committee  of  pros- 
ecution, whose  duties  are  defined  by  Section  11  of  the 
Book  of  Discipline. 

The  President  of  the  United  States  nominates,  and 
by  and  with  the  advice  and  consent  of  the  Senate, 
appoints  the  judges  of  the  Supreme  Court.  In  making 
such  appointments  the  President  and  Senate  act  minis- 
terially, in  obedience  to  a  constitutional!  requirement. 
The  power  to  appoint  and  to  confirm,  in  these  circum- 
stances, does  not  give  the  President  or  the  Senate  in 
any  degree,  the  right  of  control  over  the  action  and 
tenure  of  the  judges.  The  judges  are  appointed  accord- 
ing to  the  provisions  of  the  Constitution  ;  they  shape 
their  official  life  and  conduct  according  to  the  directions 
of  that  instrument,  in  entire  independence  of  the 
appointing  and  confirming  power. 

This  illustrates  the  position  of  the  committee  of 
prosecution  in  our  judicial  system.  The  mere  power 
of  appointment,  in  a  ministerial  way,  does  not  give 
the  Presbytery  the  right  to  control  the  action  and  life 
of  the  committee.  It  is  not  a  presbyterial  committee. 
It  is  created  by  the  Constitution,  which  determines  its 
duties  and  the  length  of  its  life. 

2d.  The  language  of  the  Book  necessarily  implies 
that  the  committee  of  prosecution  is  to  represent  the 
Presbyterian  Church  in  every  case  where  the  judica- 


22 

tory  initiates  the  prosecution.     Section  11  of  the  Book 
makes  the  tenth  Section  effective. 

Section  10  directs  that,  when  a  judicatory  initiates 
prosecution,  the  Presbyterian  Church  in  the  United 
States  of  America  sliall  he  the  i)rosecutor,  and  an 
original  party  ;  and  Section  11  orders  that  a  committee 
shall  he  appointed  by  that  judicatory  "  to  conduct 
"  the  prosecution."  The  provisions  of  Section  11  are 
absolutely  necessary  to  carry  those  of  Section  10  into 
effect.  And  the  import  of  these  provisions  cannot  be 
mistaken.  The  Presbyterian  Church  shall  be  the 
prosecutor,  and  the  committee  shall  conduct  the  pros- 
ecution. Since,  then,  the  Presbyterian  Church  is  to 
conduct  its  business  as  prosecutor,  through  the  instru- 
mentality of  the  committee  of  prosecution,  the  relation 
between  the  two  can  be  properly  expressed  in  any 
given  case,  only,  by  saying  that  the  committee  repre- 
sents the  Church. 

3d.  It  is  sufficiently  evident  that  the  committee  of 
prosecution,  and  not  the  Presbytery,  represents  the 
Presbyterian  Church,  for,  according  to  Section  11,  the 
committee  is  "to  conduct  the  prosecution,  in  all  its 
"  stages,  in  whatever  judicatory,  until  the  final  issue 
"  be  reached.'" 

This  language  means  that  if  the  case  be  taken  to  the 
higher  judicatories,  the  committee  of  prosecution  must 
follow  it,  to  conduct  the  prosecution  in  all  its  stages 
until  a  final  settlement  is  reached. 

But  if  the  committee  of  prosecution  has  only  a  pres- 
byterial  relation,  and  can  exist  and  act  only  by  the 
will  of  the  Presbytery,  then  it  cannot  exercise  its  func- 
tions beyond  the  bounds  of  the  Presbytery  whose 
creature  it  is.  It  would  be  precluded,  by  any  such  re- 
lations, from  prosecuting  "in  the  higher  courts.  The 
Presbytery  itself  has  no  right  to  prosecute  either  at  the 
bar  of  the  Synod  or  of  the  Assembly,  and  cannot, 


23 

therefore,  empower  any  of  its  committees  to  do  so, 
altliougli  it  may  appear  through  a  committee  to  defend 
its  own  action  before  a  superior  judicatory. 

But  the  Book's  meaning  is  clear,  that  the  Presby- 
terian Church  shall  continue  to  be  the  prosecutor  at 
every  stage,  and  shall  do  its  work  as  prosecutor  by 
means  of  the  Committee  of  Prosecution.  That  com- 
mittee, then,  is  related  constitutionally,  not  to  the 
Presbytery,  but  to  the  Presbyterian  Church.  For  this 
reason,  its  duties  are  defined,  and  its  rights  are  guar- 
anteed in  all  the  higher  judicatories. 

The  words,  "in  all  its  stages,  in  whatever  judi- 
"  catory,"  as  used  in  Section  11,  involve  the  right  of 
appeal  for  both  original  parties  ;  and  since  the  Presby- 
terian Church,  as  an  original  party,  conducts  the 
prosecution  by  means  of  the  Committee  of  Prosecu- 
tion, it  is  the  intent  of  the  Book,  that  the  committee 
should  have  the  power  of  appeal,  in  the  name  of  the 
Church.  The  power  to  appeal  is  a  necessary  part  of 
that  prosecution,  which  the  committee  is  directed  to 
conduct  in  behalf  of  the  Church.  It  is  the  only  way 
in  which  the  Presbyterian  Church  can  exercise  this 
right  of  an  original  party. 

As  still  further  confirmatory  of  the  position  that  the 
Committee  of  Prosecution  is  not  a  presbyterial  com- 
mittee, but  is  constitutionally  related  to  the  Presby- 
terian Church,  we  have  the  additional  direction  of 
Section  11,  "that  any  appellate  judicatory  before 
"  which  the  case  is  pending  shall,  if  desired  by  the 
"  prosecuting  committee,  appoint  one  or  more  of  its 
''  own  members  to  assist  in  the  prosecution,  upon  the 
"  nomination  of  the  prosecuting  committee."  This 
provision,  alone,  suffices  to  prove  the  prosecuting  com- 
mittee wholly  independent  of  the  initiating  judicatory. 
That  committee  has  the  sole  right  to  determine  whether 
or  not  it  will  have   any  addition  to  its  membership, 


24 

and  then  to  name  those  to  be  added  by  the  superior 
judicatory.  If  this  were  a  mere  presbyterial  commit- 
tee, having  no  right  to  act  beyond  the  will  of  the  Pres- 
bytery, then,  whenever  it  might  become  desirable  to 
have  assistance  in  the  prosecution,  this  committee 
would  have  to  apply  to  Presbytery  for  additional 
members,  since  neither  Synod  nor  Assembly  has  the 
right  to  constitute,  increase  or  diminish  presbyterial 
committees. 

There  can  be  no  doubt,  then,  that  the  Committee  of 
Prosecution  represents  the  Presbyterian  Church  in  the 
United  States  of  America,  an  original  party,  so  far  as 
the  prosecution  of  any  given  case  is  concerned,  and 
that  it  has  the  constitutional  right  to  take  an  appeal  in 
the  name  of  that  Church,  from  the  final  decision  of  an 
inferior  judicatory  in  the  case. 

Against  this  conclusion  no  serious  objection  is  urged 
except  that  no  precedents,  under  the  new  Book,  sustain 
it.  The  answer  to  this  objection  is,  that,  as  this  is 
the  first  important  case  of  the  kind,  arising  under  the 
present  Book  of  Discipline,  there  has  been  no  oppor- 
tunity to  establish  precedents,  except  as  was  done  ty^ 
the  General  Assembly  of  1892,  in  this  case. 

This  new  procedure  was  adopted,  because  the- 
practice  according  to  the  former  procedure  was  un- 
satisfactory. 

Steps  leading  to  the  Revision  of  the 
Book  of  Discipline. 

The  old-school  Assembly  of  1861,  on  motion  of  Drs. 
Charles  K.  Imbrie  and  Jonathan  Edwards,  sent  back 
to  the  Synod  of  New  Jersey,  the  appeal  and  com- 
plaint of  the  Presbytery  of  Passaic  against  the  Synod 
in  the  case  of  Mr.  Guild,  for  the  reason  that  the 
Synod  had  not  heard  the  original  parties,  the  Com- 
mittee of  Prosecution  being  one  of  them,  thus  recog- 
nizing the    right    of    the    committee  prosecuting  on. 


25 

''  common  fame  "  to  take  an  appeal.    (Minutes  of  1861, 
pp.  146-177.) 

The  Assembly  of  1877  dismissed  the  case  brought 
before  them  on  appeal,  from  the  Presbytery  of  Cin- 
cinnati, by  the  Rev.  Dr.  Thos.  H.  Skinner  and  others, 
who  acted  as  a  committee  of  prosecution,  on  the  ground 
that  the  appellants,  not  being  an  original  party,  were 
not  entitled  to  appeal.  But  a  strong  protest  was 
spread  on  the  Minutes,  in  which  the  protestants  argue 
with  entire  conclusiveness  that,  according  to  the  old 
Book,  not  only  personal  prosecutors  and  defendants 
in  a  judicial  case,  but  any  "  aggrieved  party,"  and  ''all 
''  persons  who  have  submitted  to  a  regular  trial  in  an 
"  inferior,  may  appeal  to  a  higher  judicatory."  The 
protest  was  not  answered,  for  the  simple  reason  that 
the  positions  taken  in  it  were  unanswerable.  (Minutes 
1877,  pp.  576  to  580.) 

At  the  very  next  Assembly  after  that,  the  revision 
of  the  Book  of  Discipline  was  begun  ;  and  the  chapter 
on  appeals  was  reconstructed.  Original  parties  and 
their  rights  were  more  clearly  defined,  and  the  right 
of  appeal  given  to  them  exclusively.  That  uncertain 
quantity,  "  Common  Fame,"  was  banished  altogether, 
and  in  place  of  it,  the  Presbyterian  Church  in  the 
United  States  of  America,  was  made  the  responsible 
prosecutor,  an  original  party  with  specific  direction 
to  discharge  its  functions  of  prosecutor  and  original 
party,  by  means  of  the  committee  of  prosecution. 

In  the  old  Book,  "  Common  Fame  "  was  not  declared 
to  be  an  original  party ;  but  in  the  new  Book,  the 
Presbyterian  Church  is  made  an  original  party,  and, 
as  such,  has  the  constitutional  right  to  take  an  appeal 
by  means  of  the  committee  through  whom  it  conducts 
the  prosecution. 

It  is  objected  that,  if  the  committee  of  prosecu- 
tion represents  the  Presbyterian  Church,  and  is  thus 


26 

virtually  independent  of  the  Presbytery,  then  great 
evils  are  sure  to  overtake  us.  It  is  said  that  the  Pres- 
byterian Church  as  represented  in  the  General  As- 
sembly, may  itself  claim  the  right  of  appointing  the 
committee  ;  that  the  committee,  thus  entrusted  with 
enormous  powers,  may  use  them  to  the  great  injury  of 
accused  parties  ;  and  that  we  open  wide  the  gates  for 
a  perfect  deluge  of  litigation,  and  so  endanger  the 
peace  and  usefulness  of  the  Church  to  an  alarming 
extent. 

But  if  all  this  were  true,  it  would  not  change  the 
constitutionality  of  the  standing  and  rights  of  the 
committee  of  prosecution  under  the  Book.  It  might 
furnish  an  argument  in  favor  of  changing  the  Book. 
But  these  evils  are  all  purely  imaginary.  They  have 
never  existed,  and  they  are  not  likely  to  exist  under 
the  present  Book  of  Discipline. 

The  Prosecuting  Committee  of  the  Book  of  Dis- 
cipline, A  Safe  and  Useful  Agency  to  Conduct 
Peosecutions  in  Behalf  of  the  Presbyterian 
Church. 

There  are  many  considerations  to  warrant  the  con. 
elusion  that  a  committee  of  prosecution,  with  just  such 
relations  and  powers  as  are  indicated  in  the  Book  of 
Discipline,  is  not  only  entirely  safe,  but  also  highly 
desirable  as  an  agency  for  conducting  the  prosecution 
on  the  part  of  the  Presbyterian  Church.     For 

1.  The  court  which  initiates  the  prosecution,  is 
charged  with  the  duty  of  appointing  the  committee. 
No  other  body  can  appoint  it,  not  even  the  Assembly, 
since  the  Constitution  does  not  give  it  that  right.  The 
fact  that  the  committee  is  charged  with  grave  respon- 
sibilities and  endowed  with  a  large  measure  of  power, 
leads  to  the  exercise  of  caution,  first  in  the  initiation  of 
prosecution,  and  then  in  the  selection  of  the  committee. 
These  are  strong  safeguards  and   they  are  entirely 


27 

ivithin  the  control,  in  tlie  first  instance,  of  the  respec- 
tive Presbyteries. 

The  fact  that  under  our  Book  of  Discipline  the 
Prosecuting  Committee  acting  for  the  Church  at  large 
is  vested  with  ample  powers  to  secure  prompt  decisions, 
is  likely  to  accomplish  very  beneficial  results. 

Presbyteries  will  be  careful  not  to  institute  judicial 
proceedings  and  appoint  such  committees,  unless,  as  in 
this  case,  strong  reasons  exist  for  setting  the  proceed- 
ings in  motion. 

2.  It  is  not  to  be  presumed  that  a  committee  of  prose- 
cution, clothed  with  powers  of  the  kind  named,  will 
become  an  instrument  of  inflicting  wrong  upon  innocent 
parties.  The  presumption  is,  that  a  committee  of 
Christian  ministers  and  elders,  appointed  after  prayer- 
ful consideration,  by  a  judicatory  which  is  composed 
of  Christian  ministers  and  elders,  will  be  at  pains  to  do 
only  what  is  just,  fair  and  Christian  in  the  prosecution 
of  any  case,  and  that  all  the  more  so,  since  they  are 
impersonal  prosecutors. 

The  real  danger  is  that,  when  there  may  be  urgent 
need  for  initiating  prosecution  in  a  case  like  this,  no 
body  of  men  will  be  found  willing  to  serve  on  the  com- 
mittee of  prosecution,  as  they  will  thereby  make  them- 
selves liable  to  be  reviled  and  traduced,  as  this  Prose- 
cuting Committee  has  been,  for  rendering  such  service 
to  the  Church. 

3.  To  illustrate  specifically,  in  a  trial  for  heresy,  the 
Church,  through  its  doctrines,  being  the  party  attacked, 
is  in  more  immediate  danger  of  suffering  injury  than  is 
the  other  party.  Her  faith,  'purity  and  peace,  her  testi- 
mony for  the  truth,  and  her  ecclesiastical  integrity, 
are  all  at  stake.  The  Church  ought  to  have  the  power  to 
appeal  from  an  adverse  decision  of  an  inferior  judica- 
tory, whose  members  may  be  in  sympathy  with  the 


28 

accused  or  with  his  erroneous  opinions.     Such  con- 
ditions  are  not  impossible. 

An  accused  person,  owing  to  his  social  or  eccle- 
siastical position,  may  exert  an  influence  so  great  in 
his  Presbytery  as  to  render  it  extremely  difficult,  if  not 
altogether  impossible,  to  convict  him  even  on  the  best 
of  evidence.  Or  a  considerable  number  of  the  members 
of  that  judicatory,  through  sympathetic  or  other 
interests,  may  so  far  forget  their  positions  as  judges  in 
the  case,  that  they  will  not  only  try  to  retard  and 
hamper  the  prosecution  in  every  possible  way,  but 
actively  plan  and  labor  to  procure  an  acquittal,  no 
matter  what  the  evidence  may  be. 

If  the  Presbyterian  Church  should  have  no  right  of 
appeal,  by  its  committee  of  prosecution,  from  a  decision 
thus  reached,  by  possibly  a  bare  majority  vote,  then  in 
the  language  of  the  Book,  "heretical  opinions  ^  -^  -^ 
may  be  allowed  to  gain  ground,"  with  the  greatest 
ease,  and  to  an  alarming  extent. 

This  danger  is  not  imaginary  in  times  like  our  own^ 
when  individual  liberty  of  expression  is  boldly  cham- 
pioned at  the  expense  of  denominational  bonds.  The 
Presbyterian  Church  must  have  disciplinary  methods 
such  as  will  enable  her  to  meet  threatened  dangers  of 
this  kind,  to  defend  her  faith  and  to  preserve  her  purity, 
her  integrity  and  usefulness.  To  this  end  the  Presby- 
terian Church  was  made  the  prosecutor,  and  an  original 
party,  in  certain  cases,  with  the  constitutional  right  of 
prosecuting  by  a  committee. 

Appeal  to  General  Assembly  of  1892. 

The  Prosecuting  Committee  representing  the  Pres- 
byterian Church  as  an  original  party,  appealed  from 
the  judgment  of  the  Presbytery  of  New  York,  dismiss- 
ing the  case,  entered  on  November  4th,  1891,  to  the 
General  Assembly  of  1892. 


29 

The  Prosecuting  Committee  based  its  first  appeal 
from  the  Presbytery  directly  to  the  General  Assembly 
of  1892,  upon  the  special  reasons  set  out  therein,  which 
have  been  substantially  repeated  in  the  pending  ap- 
peal. They  also  relied  upon  the  provisions  of  Section 
102  of  the  Book  of  Discipline,  which  is  as  follows : 
*'  102.  Appeals  are,  generally,  to  be  taken  to  the  judi- 
catory immediately  superior  to  that  appealed  from." 
And  upon  Chapter  XII.,  Sections  I  \^.  and  Y.  of  the  Form 
of  Government,  which  are  as  follows  : 

"  lY.  The  General  Assembly  shall  receive  and  issue 
all  Appeals,  complaints  and  references  that  affect  the 
doctrine  or  constitution  of  the  Church  which  may  be 
regularly  brought  before  them  from  the  inferior y^^i- 
catories.^'^ 

"Y.  To  the  General  Assembly  also  belongs  the 
power  of  deciding  in  all  controversies  respecting  doc- 
trine and  discipline.^' 

This  Section  lY.  of  the  Form  of  Government  is  man- 
datory and  says  the  General  Assembly  shall  receive 
and  issue  all  appeals  that  affect  the  doctrine  or  consti- 
tution of  the  Church,  which  may  be  regularly  brought 
before  them  from  the  inferior  judicatories. 

This  mandatory  provision  when  read  in  connection 
with  Section  102  of  the  Book  of  Discipline  leaves  but 
little  discretion,  when  the  conditions  named  by  the 
Book  have  been  complied  with.  They  have  been 
complied  with  in  this  case,  and  it  would  seem  that  the 
Assembly  is  compelled  not  only  to  entertain  this 
Appeal  but  to  issue  it  as  well. 

Action  of  the  General  Assembly  of  1892  as  to 
Prosecuting  Committee. 
The  right  of  the  Prosecuting  Committee  to  take  an 
appeal  directly  to  the  General  Assembly  and  its 
status  as  a  Prosecuting  Committee,  were  questioned 
at  Portland  and  were  fully  discussed  by  the  Appellant 


30 

and  the  Appellee.  The  record  of  the  proceedings  in. 
this  branch  of  the  case,  will  be  found  at  page  90  and 
following  pages  in  the  Minutes  of  the  General  Assem- 
bl}^  for  1892,  as  follows  : 

''The  Judicial  Committee  presented  its  report  in  the 
case  of  the  Presbyterian  Church  in  the  United  States 
of  America  vs.  Rev.  Charles  A.  Briggs,  D.  D.,  which 
was  accepted  as  follows  : 

''The  Judicial  Committee  respectfully  reports  that 
it  has  carefully  considered  the  documents  submitted  to 
it  in  this  case,  and  adopted  the  following  resolutions : 

"1.  That,  in  the  opinion  of  this  Committee,  the  appeal 
taken  by  the  Presbyterian  C7iurc7i  in  the  United  States 
of  America,  an  original  party  represented  by  the 
'  Committee  of  Prosecution,'  appointed  under  Sec- 
tion 11  of  the  Book  of  Discipline,  has  been  taken  from 
the  final  judgment  of  the  Presbytery  in  dismissing  the- 
case;  and  that  the  said  Committee  had  the  right  to 
take  this  appeal  representing  the  said  original  party, 

"2.  That  it  finds  that  the  notice  of  the  appeal  has 
been  given,  and  that  the  appeal,  specifications  of  error, 
and  record  have  been  filed  in  accordance  with  Sections 
96  and  97  of  the  Book  of  Discipline,  and  the  appeal  is^ 
order. 

"3.  That,  in  the  judgment  of  the  Committee,  the 
appeal  should  be  entertained,  and  a  time  set  apart  for 
the  hearing  of  the  case. 

"  In  view  of  these  considerations,  the  Committee  re- 
ports that  the  appeal  is  in  order,  and  that  the  General 
Assembly  should  proceed  in  accordance  with  the  pro- 
visions of  Section  99  of  the  Book  of  Discipline,  by 
causing  the  judgment  appealed  from,  the  notice  of 
appeal,  the  appeal  and  the  specifications  of  the  errors 
alleged,  to  be  read  ;  then  to  hear  the  appellant  by  the 
Committee  of  Prosecution:    then    the    defendant    in. 


31 

person,  or  by  his  counsel ;  tlien  the  appellant  by  the 
Committee  of  Prosecution  in  reply  upon  the  question 
*  whether  the  appeal  shall  be  entertained  r." 
In  behalf  of  the  Committee, 

T.  Ralston  Smith, 

Chaii'man. 

That  report  was  brought  before  the  house.  A  minor- 
ity of  the  Judicial  Committee  presented  a  report  which 
was  also  accepted,  and,  although  the  Assembly  subse- 
quently, after  full  discussion  by  the  parties,  laid  the 
minority  report  on  the  table  and  adopted  the  report 
of  the  majority  of  the  Committee,  that  minority  report 
and   the  action  of   the    Assembly   thereon,    becomes 
of  great  interest  and  importance,  in  view  of  what  is  now 
proposed.     The  minority  of  the  Judicial  Committee 
clearly  expressed  their  views  in  the  report,  and  there  is 
not  a  word  in  it  suggesting  that   this    Prosecuting 
Committee  was  not  a  duly  constituted  prosecuting  com- 
mitter^.    Nor  is  there  any  question  raised  as  to  the 
right  of  the  Committee  to  take  the  appeal.     But  what 
did  the  minority  recommend  ?    They  said  : 

''The  undersigned,  a  minority  of  the  Judicial  Com- 
mittee, would  respectfully  submit  the  following  report : 

**  Whereas,  the  Book  of  Discipline  requires  that 
appeals  are,  generally,  to  be  taken  to  the  Judicatory 
immediately  superior  to  that  appealed  from"  (Sec. 
102)  ;  and. 

Whereas,  There  are  no  sufficient  reasons  for  making 
the  appeal  against  the  Presbytery  of  New  York  in 
dismissing  the  case  against  Dr.  Briggs  an  exception  to 
this  rule  ; 

''  Therefore,  we  recommend  to  the  General  Assembly 
that  the  appeal  be  not  entertained;  that  the  papers  in 
the  case  be  returned  to  the  Appellant,  and  tJiat  they  he 


32 

advised  to  bring  their  appeal  or  complaint  before  the 
Synod  of  New  York, 

Respectfully  submitted, 

D.  R.  Frazee, 
Thomas  Gordon", 
Oswald  P.  Backus, 
George  W.  Ketcham." 

If  this  Committee  was  not  a  Prosecuting  Committee 
and  had  not  the  right  to  appeal  to  the  General  Assem- 
bly, what  right  had  such  a  Committee  to  take  an  appeal 
to  the  Synod  of  New  York  ?  Before  passing  away 
from  the  consideration  of  this  minority  report,  it  may 
be  well  to  recall  the  fact,  that  the  Portland  Assembly, 
after  hearing  the  arguments  on  both  sides,  and  after 
discussion  by  members  of  the  Assembly,  did  not  adopt 
the  recommendations  of  the  minority  report  to  refer  the 
case  back  to  Synod,  but  laid  the  minority  report  upon 
the  table,  and  adopted  the  recommendations  of  the 
majority  of  the  Committee. 

The  Assembly  of  1892  Declined  to  Return 

THE  Case  to  Synod. 
The  General  Assembly  of  1892,  in  declining  to  send 
the  case  down  to  Synod,  acted  intelligently  and  has 
established  a  precedent  in  this  case  which  cannot 
be  ignored  when  that  branch  of  the  subject  is  under 
discussion. 

These  questions  as  to  the  status  of  the  Prosecuting 
Committee,  its  right  to  represent  the  Presbyterian 
Church  in  the  United  States  as  an  original  party,  and 
its  right  to  take  the  appeal  directly  to  the  General 
Assembly,  were  all  brought  up.  After  three  hours 
of  argument  and  discussion  by  the  Committee  and  the 
Appellee,  and  by  members  of  the  Assembly,  action  was 
had  as  shown  by  page  118  of  the  Minutes  of  the  General 
Assembly  of  1892,  as  follows  : 


33 

"  Resolved,  that  so  mucl)  of  the  re^^ort  of  the 
Judicial  Coniniittee  as  relates  to  the  appeal  being 
found  in  order  be  adopted." 

This  action  adopted  all  of  the  committee's  report, 
except  the  two  lines  of  subdivision  3,  which  were 
excluded  because  their  adoption  would  have  carried 
the  adoption  of  the  report,  the  very  thing  that  was  up 
for  discussion,  namely,  whether  the  appeal  should  or 
should  not  be  entertained.  For  this  reason  it  was  con- 
sidered that  subdivision  3  should  be  reserved  for 
action,  after  the  arguments  had  been  made  and  this  was 
done. 

The  Appeal  to  the  General  Assembly  of  1892 
WAS  Entertained. 

On  page  119  of  the  Minutes  of  the  General  Assembly 
of  1892,  you  will  find  the  action  of  the  Assembly,  on 
the  question  of  entertaining  the  appeal,  as  follows  : 

"It  was  resolved  that  the  vote  on  entertaining  ilui 
appeal  be  now  taken  without  debate.  The  minority 
report  was  read  and  laid  on  the  table.  The  Modf^r- 
ator  also  announced  that  the  only  remaining  part,  of 
the  majority  Beport  which  had  not  been  adopted  icas^ 
'Third,  that  in  the  judgment  of  the  committee,  the 
appeal  should  be  entertained,  and  a  time  set  apart  for 
the  hearing  of  the  case.'  This  part  of  the  majority 
report  loas  then  adopted,  carrying  in  the  affirmative 
the  question  of  the  entertainment  of  the  apiDeal.  It 
was  then  resolved,  that  the  Assembly  proceed  at  once 
with  the  case  in  the  order  prescribed  in  Section  XCIX, 
Book  of  Discipline." 

The  Appeal  was  Sustained. 

The  appeal  to  the  Assembly  having  been  entertained, 
the  question  came  up  as  to  the  action  of  the  Assembly 
on  the  merits  of  the  appeal.  The  merits  were  then 
discussed  for  an  hour  and  a  half  by  each  of  the  parties, 
and  at  the  end  of  that  discussion  a  vote  was  taken  and 


34 

the  appeal  was  sustained  by  a  vote  of  431  to  87.  (General 
Assembly  Minutes  1892,  pp.  140-150).  ' '  The  Moderator 
announced  that  the  specification  of  errors  in  the  appeal 
were  all  sustained,  and  the  aj^peal  was  sustained." 
A  committee  was  appointed  to  bring  in  a  minute  in  the 
case,  the  report  of  which  will  be  found  at  page  152  of 
the  Minutes  of  1892,  as  follows  : 

^'The  Committee  appointed  to  prepare  a  minute  in 
the  judicial  case  of  the  Rev.  Charles  A.  Briggs,  D.  D., 
presented  its  report,  which  was  adopted,  and  is  as 
follows ; 

"To  the  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States  of  America : 

*'  Your  Committee  appointed  to  draft  a  form  of  judg- 
ment to  be  entered  in  the  case  of  the  Presbyterian 
Church  in  the  United  States  of  America  against  Rev. 
Charles  A.  Briggs,  D.  D.,  respectfully  report,  and  rec- 
ommend for  adoption,  the  accom^Danying  form  of 
decree  and  order. 

Respectfully  submitted, 

Thomas  Ewing, 

Chairman.'" 


35 


"The  Presbyterian  Church 

in  tlie  /      Ajjjjeal from  thejudg' 

United  States  oe  America,   >  '^^f^jf  ofjhe^  Pre,sbytery 
vs. 
Kev.  Charles  A.  Briggs,  D.  D. 


of  New  York,  dismissing 
the  case. 


"  The  General  Assembly  having,  on  the  28th  day  of 
May,  1892,  duly  sustained  all  the  specifications  of  error 
alleged  and  set  forth  in  the  appeal  and  specification  in 
this  case. 

''  It  is  now.  May  30,  1892,  ordered,  that  the  judgment 
of  the  Presbytery  of  New  York,  entered  November  4, 
1891,  dismissing  the  case  of  the  Presbyterian  Church 
in  the  United  States  of  America,  against  Rev.  Charles 
A.  Briggs,  D;  D.,  be,  and  the  same  is  hereby  reversed. 
And  the  case  is  remanded  to  the  Presbytery  of  New 
York  for  a  new  trial,  with  directions  to  the  said  Pres- 
bytery to  proceed  to  pass  upon  and  determine  the  suf- 
ficiency of  the  charges  and  specifications  in  form  and 
legal  effect,  and  to  permit  the  Prosecuting  Committee 
to  amend  the  specifications  or  charges,  not  changing 
the  general  nature  of  the  same,  if,  in  the  furtherance 
of  justice,  it  be  necessary  to  amend,  so  that  the  case 
may  be  brought  to  issue  and  tried  on  the  merits  thereof 
as  sjDeedily  as  may  be  practical. 

''And  it  is  further  ordered,  that  the  stated  clerk  of 
the  Greneral  Assembly  return  the  record,  and  certify 
the  proceedings  had  thereon,  with  the  necessary  papers 
relating  thereto,  to  the  Presbytery  of  New  York." 

The  exact  status  of  the  Prosecuting  Committee  was 
fully  recognized  and  defined  in  the  report  of  the 
majority  of  the  Judicial  Committee,  which  was 
adopted  by  the  Assembly.  It  was  not  questioned 
in  the  minority  report  and  it  was  established  by  the 
entertainment  and  sustaining  of  the  Appeal.     In  the 


36 

mandate  of  tlie  Assembly  to  tlie  Presbytery  of  New 
York,  the  rights  of  the  Committee  are  recognized  in 
express  terms. 

No  fair-minded  man,  after  reading  the  record  of  what 
was  done  in  this  case,  by  the  General  Assembly  of 
1892,  can  longer  question  the  status  of  the  Prosecuting 
Committee,  but  if  any  further  evidence  should  be  re- 
quired as  to  what  that  Assembly  did  and  intended  to 
do,  it  would  be  found  in  a  protest  presented  by  the 
Rev.  S.  J.  McPherson,  I).  D.,and  some  53  or  54  others, 
against  the  action  of  the  General  Assembly,  which 
protest  is  found  at  page  205  of  the  Minutes  of  1892. 
There  was  no  misunderstanding  at  Portland,  on  either 
side,  as  to  what  had  taken  place,  as  the  protest  which 
certain  of  those  who  were  on  the  ground  and  disap- 
proved of  the  Assembly's  action  clearly  shows,  as 
follows : 

*' The  following  protest  was  presented  and  ordered 
to  be  entered  on  the  '  Minutes '  of  the  Assembly  with- 
out answer. 

''  We,  the  undersigned,  ministers  and  elders,  com- 
missioners of  the  104th  General  Assembly,  do  hereby 
enter  and  record  our  protest  against  the  action  of  the 
General  Assembly  in  entertaining  the  appeal  in  the 
case  of  'The  Presbyterian  Church  in  the  United  States 
of  America  against  the  Rev.  Charles  A.  Briggs,  D.  D.,' 
and  so  giving  to  the  Committee  which  preferred  the 
charges  against  Dr.  Briggs  standing  before  the  Assem- 
hly  and  right  of  appeal  as  an  'original  party,'' 
beyond  the  control  of  the  Presbytery  and  its  power  to 
discharge  them  when  dismissing  the  case.^^  *    ^    ^ 

The  General  Assembly  cannot  Revise  or  Reverse 
Action  taken  by  a  Prp:vious  Assembly  in 
A  Judicial  Case. 
It  must  be  kept  in  mind  that  the  action  of  the  Gen- 
eral Assembly  of  1892,  in  deciding  substantially  all  of 


37 

the  questions  which  can  be  raised  in  opposition  to  the 
entertainment  of  this  appeal,  is  not  to  be  referred  to 
simply  as  a  precedent,  in  a  case  similar  to  this.  It 
was  action  taken  after  full  discussion,  and  in  this 
judicial  case.  Among  the  questions  thus  passed  upon 
and  determined  by  the  Assembly  of  1892  are  the  fol- 
lowing, which  are  now  res  adjudicata  in  this  case. 

1.  That  the  appeal  was  taken  by  the  Presbyterian 
Church  in  the  United  States  of  America,  as  an  Original 
Party. 

2.  That  the  Original  Party  is  represented  by  the 
Prosecuting  Committee. 

3.  That  such  Committee  is  a  Prosecuting  Committee 
appointed  under  Section  11  of  the  Book  of  Discipline. 

4.  The  Original  Party,  by  its  Prosecuting  Committee, 
has  the  right,  in  this  case,  to  take  such  an  appeal  from 
the  Presbytery,  directly  to  the  General  Assembly. 

5.  That  such  an  Appeal  is  regular  and  in  order. 

6.  The  appeal  being  regular  and  in  order,  it  must  be 
received  and  issued  by  the  Assembly  and  should  not  be 
sent  down  to  Synod.  (Form  of  Government,  Chap. 
XXL,  Sec.  IV.) 

It  is  the  law  of  our  Church,  that  it  is  not  competent 
for  one  General  Assembly  to  revise  or  reverse  the  pro- 
ceedings of  a  previous  Assembly,  taken  in  a  judicial 
case.  This  point,  as  stated  above,  has  been  settled  by 
the  General  Assembly  in  the  appeal  of  Samuel  Lowry, 
Minutes  1824,  page  115  ;  case  of  T.  F.  Worrell,  Minutes, 
1864,  page  398. 

The  case  before  us,  the  Presbyterian  Church  in  the 
United  States  of  America  against  the  Kev.  Charles  A. 
Briggs,  D.  D.,  is  the  same  case,  the  appeal  in  which 
was  entertained  and  sustained  by  the  General  Assem- 
bly of  1892,  at  Portland,  Oregon. 

By  reference  to  the  i^rinted  Record  in  your  hands, 


38 

at  page  87,  you  will  find  the  mandate  of  tlie  General 
Assembly  in  that  case,  reversing  the  judgment  of  the 
Presbytery  of  New  York,  entered  on  the  4th  day  of 
November,  1891. 

This  order  of  the  General  Assembly  remanded  the 
case  to  the  Presbytery  of  New  York,  with  directions 
that  the  case  should  be  brought  to  issue  and  tried  on 
the  merits  thereof.  The  mandate  also  directed  that  the 
Presbytery  should  pass  upon  and  determine  the  suffi- 
ciency of  the  Charges  and  Specifications  in  form  and 
legal  effect,  and  to  permit  the  Prosecuting  Committee 
to  amend  the  Charges  and  Specifications,  not  chang- 
ing the  general  nature  of  the  same. 

The  Prosecuting  Committee,  with  the  consent  of  the 
Presbytery,  the  Appellee  not  objecting,  filed  amended 
Charges  and  Specifications,  which  did  not  change  the 
general  nature  of  the  original  charges.  The  fact  that 
the  Presbytery  threw  out  two  of  the  amended  charges, 
Nos.  lY.  and  YII.,  upon  the  mistaken  ground  that  they 
did  not  conform  to  the  general  nature  of  the  original 
charges,  is  made  the  basis  of  Specifications  1  and  11 
under  the  first  ground  of  the  Appeal  now  pending. 

By  the  mandate  of  the  Assembly  of  1892,  the  Pres- 
bytery was  restricted  in  the  trial  upon  the  merits  to 
the  original  charges  or  to  amended  charges,  which  did 
not  change  the  general  nature  of  the  original  charges. 

The  fact  that  the  Presbytery  proceeded  to  trial  upon 
six  out  of  eight  of  the  amended  charges,  is  conclusive 
evidence,  that  the  judgment  now  appealed  from  is  in 
the  same  judicial  case  that  was  entertained  and  sus- 
tained at  Portland,  remanded  to  New  York,  there  tried, 
and  from  the  final  judgment  in  which  this  appeal  was 
taken. 

This  appeal  is  therefore  an  appeal  in  the  same 
judicial  case  as  that  decided  by  the  General  Assembly 
of  1892,  and  there  is  no  fact  to  justify  the  claim  made 


39 

by  tlie  Appellee  that  this  is  an  appeal  in  a  different 
case,  and  that  the  precedents  established  in  this  judicial 
case,  by  the  Assembly  of  1892,  are  not  controlling. 

All  the  points  decided  by  the  Portland  Assembly  of 
1892,  in  the  case  of  the  Presbyterian  Church  in  the 
United  States  of  America  against  the  Rev.  Charles  A. 
Briggs,  D.  D.,are  decisions  in  this  judicial  case,  under 
the  same  title  and  with  the  same  parties  as  the  one,  the 
entertainment  of  which,  is  now  under  consideration. 

Under  these  circumstances,  the  precedents  above  re- 
ferred to,  established  by  the  Assemblies  of  1824  and 
1864,  which  remain  unquestioned,  absolutely  preclude 
this  Assembly  from  attempting  to  revise  or  reverse  the 
action  of  the  Assembly  of  1892  upon  any  point,  in  this 
judicial  case,  passed  upon  by  that  Assembly. 

Action  of  Synod  of  New  Yoek  as  to  the  Prose- 
cuting Committee. 
Subsequent  to  the  proceedings  in  the  Presbytery  of 
New  York,  on  November  4,  1891,  which  resulted  in 
the  judgment  dismissing  the  case,  the  Kev.  Francis 
Brown,  D.  D.,  made  complaint  to  the  Synod  of  New 
York,  against  the  action  of  the  Presbytery  in  sustaining 
the  ruling  of  the  Moderator,  that  the  Committee  was  a 
Committee  of  Prosecution  under  Section  11  of  the 
Book  of  Discipline. 

After  the  ten  days  provided  for  by  Section  84  of  the 
Book  of  Discipline,  had  expired,  and  in  some  cases 
months  after,  the  names  of  a  number  of  persons,  113  in 
all,  no  one  of  whom  had  given  notice  of  complaint, 
were  added  to  this  complaint,  oud  it  was  claimed  for 
it,  that  the  action  of  the  Presbytery  complained  of, 
was  had  in  a  nonjudicial  case,  and  that,  therefore, 
under  Section  85  of  the  Book  of  Discipline  said  paper, 
with  the  additional  signatures,  purporting  to  be  a  com- 
plaint, stayed  the  judicial  proceedings  until  the  final 
issue  of  the  case  in  the  superior  judicatory. 


40 

This  paper,  purporting  to  be  a  complaint,  was  pre- 
sented to  the  Synod  of  New  York,  at  its  session  held 
at  Albany,  New  York,  in  October,  1892,  and  was 
declared  to  be  in  order,  but  the  Synod,  after  extended 
discussion,  decided  not  to  issue  the  complaint,  and  by 
a  vote  of  122  to  40  took  the  following  action  : 

"  In  the  matter  of  Judicial  cases  Nos.  3  and  4  (Dr. 
Brown's  complaint)  the  committee  finds  the  complaints 
to  be  in  order,  hut  recommends  that  it  is  inexpedient 
to  take  action  at  the  ^present  time  for  the  following 
reasons  : 

"1.  The  case,  through  the  action  of  the  General 
Assembly  and  of  the  Presbytery  of  New  York,  is 
again  before  the  Presbytery,  and  the  complainants  will 
there  have  their  remedy  in  their  own  hands. 

"2.  Incase  the  remedy  then  be  found  insufficient, 
they  may  afterwards  have  opportunity  by  appeal  or 
complaint  to  bring  the  case  before  Synod." 

When  the  matter  was  again  presented  to  the  Pres- 
bytery of  New  York,  it  was  discovered  that  the  com- 
plainants did  not  "have  their  remedy  in  their  own 
hands,"  for  the  Presbytery,  as  hereinafter  shown, 
promptly,  and  for  the  second  time,  sustained  the  ruling 
of  the  Moderator,  which  had  been  appealed  from,  as 
to  the  status  of  the  Prosecuting  Committee. 

Complaint  against  Action  of  the  Synod  of  New 
York,  now  pending  before  this  Assembly. 
A  complaint  was  made  to  this  Assembly  and  is  now 
pending  before  it,  against  the  action  of  the  Synod  of  New 
York  in  declaring  the  said  paper  purporting  to  be  a 
complaint,  to  be  in  order,  in  respect  of  the  118  so-called 
complainants,  no  one  of  whom  had  given  notice  of 
complaint,  as  required  by  Section  84  of  the  Book  of 
Discipline,  and  whose  signatures  were  added  to  the 
paper  purporting  to  be  a  complaint,  after  the  expiration 
of  the  ten  days  fixed  by  the  Book  of  Discipline. 


41 

Tlie  complaint  to  the  Assembly  against  the  action  of 
the  Synod  of  New  York,  last  above  referred  to,  brings 
up  to  this  Assembly  the  only  question  of  the  slightest 
importance,  in  this  case,  now  before  the  Synod.  When 
the  question  raised  by  that  complaint,  and  the  issues 
in  this  appeal,  have  been  considered  all  the  questions 
involved  can  be  at  the  same  time  and  finally  dis- 
posed of  by  the  highest  Court  of  our  Church. 

Final  Action  by  New  York  Presbytery  as  to  the 
Status  of  the  Prosecuting  Committee. 

When  in  compliance  with  the  mandate  of  the  General 
Assembly  the  Presbytery  of  New  York,  on  the  9th  day 
of  November,  1892,  proceeded  with  the  trial,  the 
Appellee  presented  objections  to  the  status,  rights  and 
powers  of  the  Prosecuting  Committee  and  asked 
the  Presbytery  to  apply  the  remedy  which  the 
Synod  had  said  might  be  in  its  own  hands. 

Thereupon  the  following  proceedings  were  had  as 
recorded  at  page  262  of  Yol.  14  of  the  Records  of  the 
Presbytery  of  New  York  : 

* '  A  point  of  order  was  here  raised  as  to  w^hether  any- 
*'  thing  is  in  order  except  the  consideration  of  the  spe- 
^^cific  action  of  the  General  Assembly. 

"The  Moderator  decided  that  the  point  of  order  was 
^ '  well  taken.  That  the  raising  of  the  question  of  the 
"  status  of  the  Prosecuting  Committee  and  of  its  right 
"to  appear  and  continue  the  conduct  of  this  case  is  not 
^'now  in  order  for  these  reasons  : 

"1st.  That  this  whole  question  was  fally  discussed 
"and  decided  by  Ihe  Judicial  Committee  of  the  General 
^'Assembly. 

"2d.  That  the  recognition  of  the  status  of  the  Com- 
"  mittee  and  its  powers  as  delined  in  the  appeal  were 
^'embodied  in  the  Judicial  Committee's  report,  recom- 
"  mending  the  entertainment  of  the  appeal. 


42 

"3d.  That  in  tlie  minutes  of  the  General  Assembly 
"giving  its  findings  in  the  case,  the  Committee' s  status 
"is  clearly  recognized. 

"4th.  That  the  protest  recorded  in  the  minutes  of 
"the  General  Assembly  by  those  objecting  to  its  action, 
"was  based  on  the  fact,  that  its  action  in  entertaining 
"the  appeal  gave  the  committee  the  standing  and 
"powers  claimed  for  it ;  and 

"Lastly.  That  the  order  sending  the  case  again  to 
"  this  Presbytery,  requiring  us  to  proceed  to  pass  upon 
"and  determine  the  sufficiency  of  the  charges  and 
"specifications,  as  to  form  and  legal  effect,  and  to 
"proceed  with  the  trial,  this  being  the  single  point 
"before  us  to  be  acted  upon,  therefore  the  Moderator's 
"decision  is,  that  this  question  is  out  of  order. 

"An  appeal  to  the  house  against  the  Moderator's 
**  decision  was  then  taken.  On  a  vote  being  taken,  a 
* '  division  was  called  for,  which  resulted  in  73  to  58  in 
"favor  of  the  Moderator's  decision." 

By  thus,  a  second  time,  sustaining  the  Moderator' s 
ruling  the  Presbytery  of  New  York  gave  a  very  decided 
answer  to  the  Ajjpellee's  request.  It  confirmed  its 
previous  action,  and  based  the  same  upon  the  action 
of  the  General  Assembly  of  1892,  which  fully  sustained 
the  status,  rights  and  powers  of  the  Prosecuting  Com- 
mittee at  every  point. 

In  view  of  the  above,  it  is  not  creditable  to  our  intel- 
ligence, nor  loyal  to  the  decisions  of  our  highest  Court,, 
that  we  should  give  this  matter  further  consideration. 

An  Alleged  Constitutional  Limitation. 

Great  Aveight  has  been  given  to  a  technical  question 
raised  in  the  interest  of  the  Appellee  and  of  delay,  based 
upon  a  clause  contained  in  the  Fifth  Amendment  ta 
the  Constitution  of  the  United  States,  which  is  as  f  oU 
lows:      ^    *    *     "Nor  shall  any  person  be   subject 


43 

for  the  same  offense  to  be  twice  j)i^t  in  jeopardy  of  life 
or  limb."  It  has  been  claimed  that  this  constitutional 
provision  prevents  an  appeal  from  the  linal  judgment 
of  the  Presbytery  of  New  York  in  this  case,  and  that  such 
an  appeal  would  place  the  Appellee's  '' ecclesiastical 
life  "  in  jeopardy  a  second  time.  This  somewhat  ingen- 
ious but  inappropriate  use  of  the  term  "ecclesiastical 
life"  seems  to  have  confused  the  minds  of  some,  as  to 
the  character  of  proceedings  under  the  Book  of  Disci- 
pline. 

The  Ordination  Vow  a  Covenant  and  Agreement. 

When  the  Appellee  was  ordained  as  a  minister,  and 
as  a  condition  precedent  to  such  ordination,  certain 
questions  were  addressed  to  him,  among  others  the 
following  (Form  of  Government,  Chapter  XV.,  Sec- 
tion XII.) : 

"1.  Do  you  believe  the  Scriptures  of  the  Old  and 
New  Testaments  to  be  the  Word  of  God,  the  only 
infallible  rule  of  faith  and  practice  ? 

"2.  Do  you  sincerely  receive  and  adopt  the  Con- 
fession of  Faith  of  this  Church,  as  containing  the 
system  of  doctrine  taught  in  the  Holy  Scriptures  1 

"3.  Do  you  approve  of  the  government  and  disci- 
pline of  the  Presbyterian  Church  in  these  United 
States  ? 

"4.  Do  you  promise  subjection  to  your  brethren  in 
the  Lord  ? 

"6.  Do  you  promise  to  be  zealous  and  faithful  in 
maintaining  the  truths  of  the  Gospel,  and  tlie  purity 
and  peace  of  tlie  Church  ;  whatever  persecution  or 
opposition  may  arise  unto  you  on  that  account  ? " 

To  each  of  these  questions  the  Appellee  gave  an 
affirmative  answer  and  these  questions  and  answers 
thenceforth  were  part  of  a  sacred  covenant,  contract 


44 

or  agreement  between  the  Appellee  and  tlie  Presby- 
terian Church  and  all  the  parties  in  interest. 

The  relation  then  established  was  a  purely  voluntary 
one  of  contract  or  agreement.  Good  considera- 
tions moved  each  of  the  parties  and  the  questions  and 
answers  established  the  agreement  or  meeting  of  the 
minds  of  the  parties. 

This  not  a  Criminal  Case,  but  a  Proceeding  to 
Determine  whether  the  Appellee's  Agree- 
ment HAS  BEEN    CARRIED   OUT. 

This  judicial  proceeding  is  to  determine  whether  that 
covenant,  contract  or  agreement  of  the  Appellee  has 
been  complied  with  or  not.  The  inaccurate  use  of  the 
term  "ecclesiastical  life"  cannot  change  the  nature  of 
this  proceeding  under  the  Book  of  Discipline. 

These  are  not  criminal  proceedings  involving  peril  to 
the  life  or  limb  of  the  Appellee.  They  are  proceedings 
to  enforce  a  contract,  or  rather  to  determine  whether 
the  contract  has  been  maintained  in  all  its  integrity. 
Preservation  of  ''ecclesiastical  life"  in  this  case  means 
simply  the  privilege  to  enjoy  the  benefits  of  a  certain 
contract.  If  it  should  be  shown  that  the  Appellee  has 
not  maintained  the  contract  in  all  its  integrity,  the 
loss  of  his  "  ecclesiastical  life  "  would  mean  simply 
the  loss  of  the  benefits  which  he  at  one  time  enjoyed 
under  the  contract  which  he  had  broken. 

As  a  matter  of  law,  the  distinction  upon  which  I  am 
insisting  is  so  simple  as  to  require  only  very  brief  illus- 
tration. A  citizen  of  the  United  States  is  engaged  by 
contract  to  perform  certain  services,  for  which  he  re- 
ceives an  official  position  and  adequate  compensation. 
It  is  at  length  alleged,  by  the  other  party  to  the  con- 
ti'Ct,  that  such  services  have  not  been  properly  per- 
formed, and  the  matter  is  brought  into  the  Courts,  the 
bill  praying  that  the  contract,  because  of  its  non- 
performance by  the  other  part}^,  should  be  cancelled  or 


45 

terminated.  A  decision  is  reached  in  the  Court  of  first 
resort,  in  favor  of  the  citizen  first  alluded  to,  and  the 
other  contracting  party  appeals. 

Would  the  appellee,  in  such  a  case,  be  justified,  or 
could  he  successfully  plead  that  the  Constitution  of 
the  United  States  protected  him,  and  that  he  nci  d 
give  no  attention  to  the  appeal  ^  Might  he  claim  that 
the  Constitution  of  the  United  States  precluded  the  ap- 
pellate Courts  from  considering  a  second  time,  on  ap- 
peal, the  points  involved  in  the  alleged  breach  of 
contract  ?  There  is  x)robably  no  lawyer  in  this  country, 
there  is  certainly  no  lawyer  in  tlii^  assembly,  who 
would  answer  these  questions  in  the  affirmative. 

The  failure  of  the  appellee  in  such  a  case,  to  comply 
with  the  terms  of  his  contract,  injures  the  other  con- 
tracting party.  He  may  not  wish  or  pray  for  damages  ; 
he  simply  asks  for  relief  from  a  contract  that  has  not 
been  fulfilled  by  the  other  party  and  from  a  relation 
which  has  therefore  become  intolerable.  But  the  ques- 
tion whether  the  contract  has  been  broken,  is  a  proper 
one  for  the  appellate  Court  to  consider  in  determining 
whether  the  appellant  is  entitled  to  the  relief  asked 
for. 

The  appellee,  in  such  a  case,  might  say  that  as  he 
was  dependent  upon  the  business  position  and  income 
secured  through  the  contract,  that  his  "  business  life" 
and  his  "financial  life"  would  be  placed  in  jeojiardy 
a  second  time  by  the  appeal.  But  the  twice-endangered 
business  life  or  financial  life  could  not  be  made  a 
ground   of  objection  to   the  apj)eal  as  such. 

Not  only  every  lawyer,  but  every  man  of  affairs  will 
assent  to  that.  What  has  been  called  a  man's  "  eccle- 
siastical life"  is  a  matter  of  great  importance,  but  it 
should  not  be  urged  as  a  ground  against  an  appeal 
in  a  case  where  an  ecclesiastical  covenant  is  involved. 
It  would,  indeed,  be  unfortunate  if  a  higher  code  of 


46 

ethics  prevailed  in  the  civil  Courts  of  this  country  than 
the  code  which  is  recognized  in  the  courts  of  this 
Church. 

The  Constitutional  Limitation,  above  referred 
to,  does  not  apply  in  this  case. 

The  provision  of  the  amendment  to  the  Constitution 
referred  to,  is  the  outgrowth  or  remnant  of  the  struggle 
for  security  and  safety  on  the  part  of  the  subject 
against  the  despotic  and  arbitrary  power  so  often  exer- 
cised by  kings  and  rulers  in  the  past,  over  their 
subjects.  It  originated  as  a  constitutional  and  very 
proper  safeguard  to  protect  the  subject  against  the 
power  of  a  sovereign.  This  provision  was  introduced 
as  an  amendment  to  the  Constitution  of  the  United 
States,  simply  to  guard  against  the  power  of  the  Federal 
Government  and  the  Federal  Courts,  at  a  time  when 
alarm  was  felt  about  the  tendency  towards  Federal  cen- 
tralization of  power.  It  is  still  an  eminently  wise  con- 
stitutional provision,  and  properly  controls  in  the  admin- 
istration of  justice  in  all  criminal  cases  where  the  death 
penalty  or  other  serious  legal  penalty  is  enforced,  but 
it  has  no  place  or  influence  in  the  orderly  enforcement 
of  discipline  under  the  Constitution  of  a  voluntary  asso- 
ciation like  the  Presbyterian  Church. 

No  one  is  forced  to  accept  the  doctrines  of  the  Pres- 
byterian Church.  No  one  is  forced  to  remain  in  a 
position  where  one  is  subject  to  its  discipline.  But 
when  any  one  has  voluntarily  entered  into  covenant  or 
agreement  with  that  Church,  he  is  honorably  and 
morally  bound  to  submit  to  the  orderly  enforcement  of 
its  law.  So  long  as  he  remains  in  this  ecclesiastical 
fellowship  and  communion,  it  is  not  lawful  or  right  to 
invoke  the  provisions  of  any  civil  law  or  constitution 
to  delay  the  orderly  enforcement  of  the  discipline  of 
the  Church,  or  to  j)revent  it. 


47 

The  Confessional  Position  as  to  Civil  Laws  and 
Constitutions. 

The  Confession  of  Faith  enforces  this  distinction 
with  the  utmost  clearness.  Cliaj)ter  XXIII.,  Sub- 
section III.,  is  as  follows  :  "  Civil  magistrates  may  not 
^  ^  -^  ^t  *  ^  jj-^  ^Ijq  least,  interfere  in  matters  of 
faith.  -•  ^  ^  ^v  ^  *  And,  as  Jesus  Christ  hath 
appointed  a  regular  government  and  discipline  in  his 
Church,  no  law  of  any  commonwealth  should  interfere 
with,  let,  or  hinder,  the  due  exercise  thereof,  among 
the  voluntary  members  of  any  denomination  of  Chris- 
tians,  according   to  their  own  profession  and  belief." 


Decision  thereon  of  the  Supreme  Court  of  the 
United  States. 

This  position  so  fully  and  clearly  stated  in  the  Con- 
fession of  Faith,  has  in  effect,  been  adopted  by  the 
Supreme  Court  of  the  United  States  in  the  leading  case 
of  Watson  against  Jones,  reported  in  13  Wallace,  pages 
679-738.  This  case  is  commonly  known  as  the  Walnut 
Street  Church  case  and  the  opinion  is  given  in  full  in 
Moore's  Digest,  1886,  pages  251-262. 

In  this  decision  the  Supreme  Court  of  the  United 
States  holds,  that  when  the  General  Assembly  as 
the  Supreme  Court  of  the  Presbyterian  Church  has 
decided  any  question  of  doctrine  or  discipline  accord- 
ing to  the  Standards  and  Book  of  Discipline,  the  legal 
tribunals  must  accept  such  decision  as  final  as  against 
the  decision  of  any  Civil  Court  or  Constitution,  and 
that  the  Civil  Courts  will  not  even  look  into  or  question 
such  decisions.  This  opinion  of  the  Supreme  Court  of 
the  United  States  says  : 

''  There  are  in  the  Presbyterian  system  of  ecclesiasti- 
cal government,  in  regular  succession,  the  Presbytery 
over  the  session  or  local  church,  the  Synod  over  the 


48 

Presbytery  and  the  General  Assembly  over  all. 
These  are  called  in  the  language  of  the  Church  organs, 
judicatories,  and  they  entertain  appeals  from  the  de- 
cisions of  those  below,  and  prescribe  corrective  meas- 
ures in  other  cases." 

"In  this  class  of  cases  we  think  the  rule  of  action 
which  should  govern  the  civil  courts,  founded  in  a 
broad  and  sound  view  of  the  relations  of  Church  and 
State  under  our  system  of  laws,  and  supported  by  a 
preponderating  weight  of  judicial  authority,  is  that, 
whenever  the  questions  of  discipline  or  of  faith  or 
ecclesiastical  rule,  custom  or  law,  have  been  decided 
by  the  highest  of  these  church  judicatories  to  which 
the  matter  has  been  carried,  the  legal  tribunals  must 
accept  such  decisions  as  final  and  as  binding  on  them  in 
their  application  to  the  case  before  them." 

"The  right  to  organize  voluntary  religious  associa- 
tions, to  assist  in  the  expression  and  dissemination  of 
any  religious  doctrine,  and  to  create  tribunals  for  the 
decision  of  controverted  questions  of  faith  within  the 
association,  and  for  the  ecclesiastical  government  of 
all  the  individual  members,  congregations  and  officers 
within  the  general  association,  is  unquestioned.  All 
who  unite  themselves  to  such  a  body,  do  so  with 
an  implied  consent  to  this  government,  and  are  bound 
to  submit  to  it.  But  it  would  be  vain  consent  and 
would  lead  to  the  total  subversion  of  such  religious 
bodies,  if  any  one  aggrieved  by  one  of  their  decisions 
could  ajDpeal  to  the  secular  Courts  and  have  them 
reversed.  It  is  of  the  essence  of  these  religious  unions, 
and  of  their  right  to  establish  tribunals  for  the  decision 
of  questions  arising  among  themselves,  that  those  de- 
cisions should  be  binding  in  all  cases  of  ecclesiastical 
cognizance,  subject  only  to  such  appeals  as  the  organism 
itself  provides  for.' ' 


49 

The  opinion  of  the  Supreme  Court  continues  as 
follows : 

''In  the  case  of  Watson  vs.  Farris,  45  Missouri,  183, 
that  Court  held  t/iat  whether  a  case  was  regularly  or 
irregularly  before  the  Assembly^  loas  a  question  lohich 
the  Assembly  had  the  right  to  determine  for  itself\ 
and  no  civil  court  could  reverse,  modify  or  impair  its 
action  in  a  matter  of  merely  ecclesiastical  concern." 

"We  cannot  better  close  this  review  of  the  authorities 
than  in  the  language  of  the  Supreme  Court  of  Pennsyl- 
vania in  the  case  of  tlie  German  Reformed  Church  vs. 
Siebert,  5  Barr,  291  ;  'The  decisions  of  ecclesiastical 
courts,  like  every  other  judicial  tribunal  are  final,  as 
they  are  the  best  judges  of  what  constitutes  an  offence 
against  the  word  of  God  and  the  discipline  of  the 
Church.  Any  other  than  those  Courts  must  be  in- 
competent judges  of  matters  of  faith,  discipline  and 
doctrine  ;  and  civil  courts  if  they  should  be  so  unwise 
as  to  attempt  to  supervise  their  judgments  on  matters 
which  come  within  their  jurisdiction,  would  only  involve 
themselves  in  a  sea  of  uncertainty  and  doubt  which 
would  do  anything  but  improve  either  religion  or  good 
morals ' .'' 

This  Decision  the  Law  of  the  Land. 

This  decision  of  the  Supreme  Court  of  the  United 
States  still  stands.  It  has  been  frequently  cited  with 
approval  by  the  same  Court  and  is  the  law  of  the  land 
upon  the  questions  decided  therein.  This  decision 
of  the  Supreme  Court  of  the  United  States  makes  final 
and  conclusive  any  decision  reached  by  the  General 
Assembly  of  the  Presbyterian  Church  as  to  matters 
that  concern  theological  controversy^  Church  disci- 
pline^ ecclesiastical  government  or  the  conformity  of  the 
members  of  the  Church  to  its  Standards. 

Even  if  the  provision  of  the  Constitution  of  the  United 
States  referred  to,  did  apply  to  proceedings  under  a 


50 

Book  of  Discipline  like  tliat  of  the  Presbyterian  Clmrcli, 
such  a  provision  would  not  be  in  point.  The  Constitu- 
tion of  the  United  States  declares,  indeed,  that  no  per- 
son shall  be  subject  to  be  put  in  jeopardy  of  life  or 
limb,  twice  for  the  same  ofl'ence.  But  the  Supreme 
Court  of  the  United  States  has  held  in  ex-parte,  Lange 
18  Wallace,  163,  that  this  constitutional  provision  was 
mainly  designed  to  prevent  a  second  punishment  for 
the  same  crime  or  misdemeanor  and  not  a  second 
trial.  Where,  as  in  this  case,  no  punislwient  has  been 
inflicted  upon  tJte  Apyellee^  the  Constitutional  provision 
is  not  to  be  invoked.  It  is  not  to  interfere.  It  has  refer- 
ence only  to  restraints  ui^on  the  general  government, 
and  its  courts.     (Baker  on  the  Constitution,  page  182.) 

[Here  the  argument  was  interrupted  by  adjourn- 
ment.] 

Before  resuming  my  argument  at  the  point  of  inter- 
ruption at  the  adjournment  of  this  afternoon,  I  should 
say  something  as  to  the  concluding  part  of  Dr.  Briggs' 
argument. 

The  declaration  of  his  faith  made  by  the  Appellee 
at  the  close  of  his  plea,  may  or  may  not  be  fully  in 
accord  with  the  accepted  forms  of  belief  in  the  Presby- 
terian Church.  One  x>oint  should  be  noted  in  it,  how- 
ever. He  has  modified  his  answer  to  the  questions  of 
Union  Seminary,  for  he  now  declares  that  he  accepts 
the  Scriptures  as  true,  as  to  historical  facts,  a  modifica- 
tion sufficiently  broad  to  allow  of  acceptance  even  by 
one  who  believes  that  Jonah,  or  Ruth,  or  Esther,  or 
Job,  or  all  of  them,  are  unhistorical  characters. 

In  any  event,  the  Appellee's  confession  here  made, 
is  no  stronger  than  that  which  he  made  just  be- 
fore delivering  the  Inaugural  Address,  so  that  the 
question  remains  as  it  did,  before  this  new  statement 
was  altered  as  it  has  been  to-day.  In  the  Appellee's 
judgment  his  inaugural  is  fully  in  accord  with  the  con- 


51 

fession.     The  question  for  you  to  decide,  is  whether 
or  not  the  two  can  be  in  full  accord. 

The  Appellee  referred  sharply  to  the  fact  that  on 
page  6  of  the  Record  the  Appellants  had  omitted  the 
series  of  questions  and  answers  included  in  the  pre- 
amble to  the  resolution.  Stars  were  placed  in  the 
record  to  indicate  an  omission,  as  should  always  be 
done  when  an  extract  is  not  full  and  complete. 

An  examination  of  the  page  will  show  to  any  candid 
man  that  everything  covering  the  matter  at  issue  is 
given  there,  and  given  in  fullness.  That  matter  was 
introduced,  not  to  tell  anything  respecting  Dr.  Briggs' 
soundness  or  unsoundness,  nor  even  to  tell  anything 
tliat  Dr.  Briggs  had  said,  but  solely  and  only  to  pfove 
that  an  attempt  was  made  to  dismiss  the  case  because 
of  statements  made  by  Dr.  Briggs,  not  on  the  floor  of 
the  Presbytery,  not  in  response  to  queries  offered  by 
the  Presbytery,  but  made  to  a  body  of  gentlemen  who 
in  their  corporate  capacity  bore  no  direct  relations  to 
tlie  Presbyter3^ 

With  reference  to  the  confession  or  declaration  as 
made  by  the  Appellee  to-day,  I  was  very  glad  to  hear 
it.  I  have  heard  it  in  somewhat  similar  forms  on 
other  occasions.  But  those  categorical  answers  were 
given  and  were  replied  to,  after  the  Inaugural  Address 
had  been  delivered,  but  before  the  proceedings  in  the 
New  York  Presbytery  were  begun. 

During  the  first  trial  declarations  of  principles  were 
made  by  the  Appellee  and  the  case  was  dismissed. 
Keep  in  mind  the  only  thing  that  these  proceedings 
are  based  upon  is  the  Inaugural  Address. 

If  any  one  has  the  volume  in  his  possession,  and  will 
look  at  the  preface  of  the  third  edition  of  Dr.  Briggs' 
Inaugural  Address,  which  bears  imprint  or  date  of 
November  5th,  1891,  the  day  immediately   following 


52 

the  first   trial  in  Presbytery— the  day  after  the  case 
liad  been  dismissed — he  Avill  find  these  words : 

"I  have  seen  nothing  in  the  hostile  criticism  to  lead 
me  to  make  any  change  whatever,  either  in  the  matter 
or  the  form  of  the  address.  But  it  seems  to  me  wise 
to  republish  the  address  in  a  second  edition  under  my 
own  responsibility,  with  some  additional  notes  and 
explanations." 

This  third  edition  contains  the  charges  made  against 
me  before  the  Presbytery  of  New  York,  Oct.  5th,  and 
my  answer  thereto  of  Nov.  4th. 

The  fourth  edition  of  the  Inaugural,  which  is  dated 
in  the  following  year,  June  24th,  1892,  contains  the 
above  words,  reaffirming  at  that  date  the  declarations 
of  the  Inaugural  Address. 

The  charges  are  based  upon  the  Inaugural  Address 
only ;  and  the  Inaugural  Address,  as  you  see  by  the 
preface  of  the  succeeding  editions,  stands  not  re- 
tracted, not  withdrawn — stands  just  as  delivered. 

I  will  now  resume,  Fathers  and  Brethren,  at  the 
point  at  which  the  argument  was  interrupted. 

The  Alleged  Plea  that  an  Acquittal  by  a  Lower 
Court  Bars  the  Right  of  Appeal. 

It  has  been  frequently  claimed  of  late,  that  ''  by  the 
law  of  the  Presbyterian  Church  the  acquittal  of  an 
accused  person  by  a  lower  court,  bars  the  right  of  ap- 
peal to  a  higher  court." 

Such  a  claim  is  not  true  in  fact  nor  sound  in  law. 
Some  have  been  led  into  mistake  in  this  matter  from 
not  distinguishing  the  very  marked  difference  between 
some  of  the  provisions  of  law  and  the  procedure  fol- 
lowed in  civil  and  ecclesiastical  trials. 

By  the  Amended  Cliarges  and  Specifications  in  this 
case,  the  accused  was  charged  with  delivering  an  In- 


53 

augural  Address,  in  which  it  was  claimed,  that  he 
taught  doctrines  which  are  contrary  to  the  Holy  Scrip- 
tures and  the  Standards  of  the  Presbyterian  Church. 
Upon  the  trial  the  accused  admitted  the  fact  that  he 
had  delivered  the  Address  containing  the  Avords  set  out 
in  the  Specifications  to  the  Charges.  But  at  the  same 
time  he  made  a  denial,  which,  in  the  Civil  Courts, 
would  be  called  a  demurrer,  as  to  the  legal  effect  of 
the  teaching  with  which  he  was  charged. 

In  a  trial  in  a  civil  court,  the  facts  as  to  what  he  had 
taught,  which  were  admitted,  would  have  been  passed 
upon  by  the  jury  ;  the  legal  effect  of  the  teaching  which 
he  denied,  w^ould  have  been  passed  upon  by  the  Court. 
It  is  at  this  point  that  confusion  comes  to  some  minds. 
I  ask  you  to  carefully  distinguish  the  difference  be- 
tween the  organization  and  practice  of  the  civil  and 
ecclesiastical  courts. 

Under  our  Presbyterian  polity,  the  members  of  a 
Judicatory  are  both  jurymen  and  judges.  By  the 
admissions  of  the  accused,  that  he  did  deliver  the 
address  and  did  use  the  words  charged,  the  case 
passed  at  once  out  of  the  hands  of  the  members  of  the 
Judicatory  in  their  capacity  of  jurymen,  for  the  facts 
were  all  settled  by  the  admissions  of  the  accused.  The 
questions  of  law  had  been  already  determined  when 
the  Presbytery  accepted  the  charges  and  specifica- 
tions, as  sufficient  in  form  and  legal  effect,  if  proved, 
to  be  an  offence  and  sufficient  to  put  the  accused  on 
his  defence.  (Records  Presbytery  of  N.  Y.,  Vol.  14, 
page  369.) 

After  hearing  the  arguments  on  both  sides  the 
Judicatory  went  into  private  session  and  determined 
that  the  accused  should  be  "  fully  acquitted."  There- 
upon the  case  was  taken  on  appeal  to  the  Supreme 
Court  of  the  Church  on  the  legal  questions  involved. 

It  would  not  be  proper  for  me,  at  this  time,  to  discuss 
the  further  steps  in  the  appeal,  but  it  is  sufl3.cient  to 


54 

say  tliat  while  sucli  proceedings  are  seldom  taken  in 
onr  ecclesiastical  Conrts,  con^esponding  proceedings 
are  taken  every  day  in  onr  Federal  and  State  Conrts. 

As  the  Form  of  Government  and  the  Book  of  Disci- 
pline of  the  Presbyterian  Church  make  full  and  exact 
provision  for  appeals  to  the  General  Assembly  on 
doctrinal  and  constitutional  questions,  making  no  dis- 
tinction as  to  whether  the  decision  appealed  from  was 
for  or  against  the  accused,  no  good,  sound  or  legal 
reason  exists  why  such  an  appeal  having  been  taken 
should  not  be  entertained  by  this  Assembly. 

It  is  affirmed  that,  if  this  right  of  appeal,  espe- 
cially appeal  from  a  verdict  of  acquittal,  in  the  name 
of  the  Church,  be  granted  to  the  Committee  of  Prose- 
cution, it  will  be  in  gross  violation  of  the  Constitution, 
and  result  in  the  rankest  kind  of  injustice.  Surely  this 
objection  is  not  intended  seriously.  How  can  that  be  a 
violation  of  the  constitution  for  which  the  constitution 
makes  express  provision  ^  The  absence  of  precedent  for 
the  exercise  of  this  right  by  the  Committee  of  Prosecu- 
tion, does  not  make  its  exercise  unconstitutional,  for, 
as  has  been  stated  already,  there  may  have  been  neither 
time  nor  occasion  for  making  precedents  on  this  point. 
To  affirm  that  everything  for  which  there  cannot 
be  found  a  precedent  is  unconstitutional,  is  to  elevate 
precedent  above  the  Constitution,  and  to  deny  the  pos- 
sibility of  constitutional  reforms  or  changes. 

The  Constitution  of  the  Presbyterian  Church  does  not 
regard  the  verdict  of  acquittal  in  the  lower  Judicatory 
as  a  completion  of  the  case,  in  the  sense  that  the  jeop- 
ardy ceases  with  such  acquittal.  An  accused  person 
has  never  been  in  jeopardy,  technically,  until  the  case 
reaches  Synod,  in  matters  of  ordinary  discipline,  or 
reaches  the  Assembly  in  cases  of  doctrine  and  Consti- 
tution. 

This  right  of  appeal  from  any  decision  of  an 
inferior  judicatory  by  any  of  the  parties  has  never  been 


55 

seriously  questioned.  It  has  been  uniformly  exercised. 
Under  the  Old  Book,  ^'a  party  aggrieved,"  and  all 
persons  who  have  submitted  to  a  regular  trial  in  an 
inferior,  may  appeal  to  a  higher  judicatory.  Any  one 
or  more  of  a  minority  had  the  right  to  appeal  from 
any  linal  judgment  of  a  lower  to  a  higher  judicatory. 
Moore's  Digest,  1878,  p.  548,  says:  ^'Before  the 
"•  adoption  of  the  Constitution  in  its  present  form, 
"  in  1831,  no  distinction  was  made  between  an  appeal 
"  and  complaint.  The  Common  form  was,  'we  appeal 
"  and  complain.'  Under  this  broad  title  an]/  decision 
''  lohatever  was  carried  by  any  iJarties  from  the  lower 
"  courts  to  the  higher.  Appeals  are  limited  by  the 
"  present  Constitution  to  the  original  parties  to  a  case 
"  who  may  deem  themselves  aggrieved,  and  to  cases 
"  which  have  been  judicially  decided  by  a  lower  judi- 
"  catory.  Under  this  head,  however,  are  included  all 
"  cases  of  whatever  character  which  have  been  the 
"  subject  of  a  decision  by  an  inferior  judicatory." 

The  assembly  of  1883  endorsed  the  principle  of  appeal 
from  a  sentence  of  acquittal,  in  the  case  of  Mr.  Griffith. 
(See  Moore's  Digest,  1873,  p.  548.) 

''The  Synod  of  New  York  decided  that  the  death  of 
' '  Rev.  Mr.  Griffith  should  be  no  bar  in  the  way  of  the 
"  prosecution  of  an  appeal  by  his  prosecutor  from  the 
"  decision  of  the  Presbytery  of  Bedford,  acquitting 
"Mr.  Griffith.  With  these  (this)  exceptions  (excep- 
"  tion)  the  Committee  recommended  that  the  Records 
"  be  approved.  Their  report  was  adopted.  Minutes 
"1833,  p.  400."     (Moore's  Digest,  1873,  p.  548.) 

In  the  case  last  referred  to  the  Synod  of  New  York 
decided  that  a  prosecutor  had  the  right  to  appeal  from 
the  decision  of  the  Presbyter}^  acquitting  the  accused, 
and  that  part  of  the  Synod's  proceedings  the  Assembly 
of  1838  ai^proved. 

A  well-known  Elder  of  our  Church,  when  recently 
discussing  this  question,  aptly  says:  "It  has  always 


56 

"  been  the  law  of  the  Church  that  the  prosecutor,  at 
"  least  in  judicial  cases  involving  doctrine  and  consti- 
"  tutional  law,  may  take  an  appeal  from  the  decision  of 
"  the  Court  in  which  the  case  originated,  to  the  Supe- 
''  rior  Courts,  although  the  decision  in  the  lower  Court 
"  may  have  acquitted  the  accused  of  the  charge  pre- 
"  ferred  against  him  ;  and  that  up  to  1821  any  one  or 
"  more  of  a  minority  had  the  riglit  to  appeal  from  any 
"  decision  whatever  of  a  lower  Court  to  a  higher.  Yet 
"  no  one  ever  claimed  or  imagined  until  now,  that 
"  there  was  the  slightest  injustice  in  this.  On  the  con- 
"  trary,  it  was  recognized  as  the  only  way  in  which 
"  doctrinal  and  constitutional  questions  could  be 
''  authoritatively  determined. 

"  In  view  of  these  facts  I  think  that  it  will  be  ad- 
"  mitted  that  the  right  of  a  prosecutor  to  appeal  to  a 
"  superior  Court  from  a  judgment  of  acquittal  in  an 
"  inferior  Court,  is  not  a  novelty,  an  innovation,  sought 
"  for  the  iirst  time  to  be  made  a  feature  of  our  Church 
"  discipline."  (Open  letter  of  William  Ernst,  Esq.,  to 
Prof.  Willis  J.  Beecher,  D.  D.,  in  the  "  Presbyterian," 
April,  1893.) 

An  Appeal  direct  feom  the  Presbytery  to  the 
Assembly,  being  allowed  by  the  Book  of 
Discipline,  is  regular. 

This  is  not  the  ordinary,  but  the  extraordinary, 
mode  of  procedure,  and  is  to  be  taken  only  for  special 
reasons.  But  it  should  be  distinctly  noticed  that 
the  extraordinary  feature  does  not  render  it  irregular, 
since  the  Constitution  provides  for  it. 

Section  102  of  the  Book  of  Discipline  reads  :  "  Appeals 
"  are,  generally,  to  be  taken  to  the  judicatory  imme- 
''  diately  superior  to  that  appealed  from."  The  use  of 
the  word  "generally"  leaves  room  for  exceptional 
cases,  in  which  "  the  judicatory  immediately  superior  " 
may  be  passed  by  ;  and  this  is  no  novelty  ;  it  was  not 


57 

introduced  by  those  who  remodelled  the  Book  ;  it  was 
in  the  old  Book  ;  it  is  part  of  the  time-honored  practice 
of  our  church. 

According  to  Section  70  of  the  Book  of  Discipline, 
there  are  four  ways  in  which  a  cause  may  be  carried 
from  a  lower  to  a  higher  judicatory,  viz. :  General 
Review  and  Control,  Reference,  Complaint  and  Appeal. 
Sections  71  and  83  make  it  plain  that  Review  and 
Control  and  Complaints  must  invariably  be  by  or  to 
the  next  superior  judicatory. 

But  it  is  different  with  References  and  Appeals. 
Section  77  states  that  a  Reference  is  "made  by  an 
''  inferior  to  a  superior  judicatory,"  and  Section  94 
that  an  appeal  is  "from  an  inferior  to  a  superior  judi- 
catory." In  both  cases  the  language  of  the  Book  care- 
fully refrains  from  naming  the  judicatory  next  supe- 
rior, as  in  the  case  of  Review  and  Control,  and  of 
Complaints.  The  next  superior  judicatory  may  or 
may  not  be  resorted  to  in  case  of  a  reference  or  an 
appeal. 

These  provisions  of  the  Book  of  Discipline  conform 
with  the  directions  of  the  Form  of  Government.  By 
Chapter  XI.,  Section  IV.,  of  the  Form  of  Government, 
the  Synod  is  debarred  from  giving  a  final  decision  on 
matters  which  affect  the  doctrine  and  constitution  of 
the  Church.  I  refer  to  this  here  particularly  for  the 
reason  that  an  overture  has  come  to  this  Assembly, 
from  some  of  the  Presbyteries,  in  which  the  Assembly 
is  urged  not  to  entertain  this  appeal,  as  that  would  be 
"  an  ignoring  of  that  important  body,  the  Synod,  and 
"  a  virtual  slight  upon  synodical  privileges  and 
"  dignity."  But  how  can  Synod  be  ignored,  or  its 
privileges  and  dignity  be  slighted  by  withholding  from 
it  a  matter  respecting  which  it  cannot  make  a  final 
decision  ?  The  appellants  have  disclaimed  any  intention 
to  ignore  the  Synod,  or  to  cast  a  slight  upon  its 
privileges  and  dignity. 


58 

The  rights,  privileges  and  dignity  of  the  Synod  of 
New  York  are  not  touched  in  any  way  by  direct  appeal 
to  the  Assembly,  since  neither  that  nor  any  other  Synod 
has  the  constitutional  power  to  settle  doctrinal  or  con- 
stitutional questions  for  the  whole  Church.  Besides, 
the  fact,  pointed  out  in  the  appeal,  that  all  but  one  of 
the  thirty-one  Presbyteries  of  the  Synod  of  New  York 
will  now,  in  the  Assembly,  have  a  voice  in  the  final 
settlement  of  these  questions,  should  have  due  consid- 
eration. In  no  other  way  can  the  Synod  of  New 
York  exert  so  large  an  iniluence  in  the  final  deter- 
mination of  this  matter. 

The  Constitution  (Form  of  Government,  Chapter  XL, 
Section  IV.),  in  express  terms  limits  the  powers  of  the 
Synod  by  providing  that  its  decision  shall  be  final, 
only,  in  cases  which  "do  not  affect  the  doctrine  or  con- 
stitution of  the  church.''  Such  a  constitutional  limita- 
tion does  not  ignore  or  reflect  upon  the  dignity  of  the 
Synod. 

No  intelligent  man  would  claim  that  the  provisions 
of  the  Constitution  of  the  United  States  (Article  YII., 
Section  I.),  that  "All  bills  for  raising  revenue  shall 
originate  in  the  House  of  Representatives,"  is  a  reflec- 
tion upon  the  character  or  dignity  of  the  Senate  of  the 
United  States.  This  provision  was  made  so  as  to  carry 
out  consistently,  the  theory  upon  which  a  Constitution 
providing  for  a  complete  system  of  political  govern- 
ment was  based. 

So  this  constitutional  limitation  upon  the  power  of 
the  Synod,  not  to  make  final  decisions  upon  doctrinal 
and  constitutional  questions,  was  most  properly  made 
to  secure  a  consistent,  fair,  well-rounded  system  of 
ecclesiastical  government. 

If  time  permitted,  this  might  be  illustrated  in  many 
ways,  but  one  example  will  be  suflicient.  When  an 
effort  was  made  to  revise  the  Confession  of  Faith,  in 


69 

compliance  with  the  mandatory  provisions  of  the  Form 
of  Government  the  overtures  in  relation  to  the  pro- 
posed doctrinal  chan<^es,  were  sent  down,  not  to  the 
Synods,  but  to  the  Presbyteries,  and  tlie  answers  of  the 
Presbyteries  were  transmitted,  not  through  or  by  way 
of  the  Synods,  but  directly  to  the  General  Assembly. 

No  one  pretends  to  claini  that  such  a  constitutional 
proceeding  is  a  slight  upon  the  character  or  dignity 
of  the  Synods,  It  is  the  constitutional  method  of 
dealing  with  overtures  relating  to  doctrinal  changes. 

In  exactly  the  same  way  the  constitution  provides 
that  appeals  in  judicial  cases,  relating  to  doctrine, 
need  not  go  to  the  Synod,  but  may  go  directly  to  the 
General  Assembly. 

There  is  no  jnstification  in  fact  or  law,  for  the 
statements  which  have  been  made,  first,  that  tliis 
appeal  should  not,  as  a  matter  of  right,  be  brought 
directly  to  the  General  Assembly,  or,  second^  that  in 
acting  within  the  limits  of  constitutional  authority,  the 
Prosecuting  Committee,  representing  the  entire  Church, 
have  intentionally  ignored  the  powers  or  prerogatives, 
or  reflected  upon  the  character  and  dignity  of  the 
Synod  of  New  York. 

This  case,  as  such,  has  never  been  before  the  Synod  of 
New  York.  That  Synod  has  not  assumed  jurisdiction 
of  this  case.  All  that  it  has  ever  done  is  to  declare  in 
order,  two  certain  complaints  which  relate  to  collateral 
questions,  to  give  to  these  complaints  the  legal  effect 
claimed  for  them  by  the  Complainants  they  had  under 
Section  85  of  the  Book  of  Discipline  to  allege,  that  they 
were  not  taken  in  the  judicial  case^  although  they 
claimed,  as  soon  as  the  complaints  were  made,  that  the 
judicial  case  was  thereby  stayed. 

The  Synod  of  New  York  has  never  received  or  enter- 
tained, or  heard  in  its  official  capacity,  of  the  case  of 
The  Presbyterian  Church    in   the    United    States  of 


60 

America  against  the  Rev.  Charles  A.  Briggs,  D.  D. 
Consequently,  in  taking  this  Appeal  to  the  G-eneral 
Assembly,  there  is  no  intended  slight  to  the  Synod  of 
New  York  ;  there  is  nothing  that  could  be  reasonably 
construed  into  such  a  slight.  In  coming  to  the  General 
Assembly,  the  Appellant  is  doing  simply  what  the 
Constitution  says  it  may  do,  and  Avhat,  as  representing 
the  Presbyterian  Church  in  the  United  States,  it  was 
the  duty  of  the  Prosecuting  Committee  to  do.  The 
Committee  would  have  subjected  themselves,  very 
properly,  to  censure  from  this  body,  if  they  had  taken 
any  other  course.  If  this  Court  should,  in  its  wise  dis- 
cretion, think  that  this  matter  should  go  to  the  Synod, 
the  first  steps  toward  that  result  must  be  to  entertain 
this  appeaL  You  cannot  act  or  take  any  act  in  dis- 
posing of  this  matter  until  you  have  tirst  voted  to 
entertain  the  appeal.  Until  all  preliminary  and  juris- 
dictional questions  have  been  settled  and  jurisdiction 
has  been  assumed,  this  Court  cannot  make  any  order 
as  to  the  disposition  of  the  case.  When  you  have 
taken  the  vote  to  entertain  the  appeal,  then  the 
members  of  the  Court  should  consider  the  obligation 
placed  upon  them  by  the  Constitution  of  this  Church, 
to  dispose  of  this  case  in  such  manner  as  will  conserve 
the  truth  and  best  protect  the  interest  of  the  whole 
Church. 

As  Commissioners  to  this  Gfeneral  Assembly  you 
are  under  very  solemn  obligations  and  responsibilities. 
You  have  not  come  here  to  act  in  obedience  to  special 
resolutions  of  your  respective  presbyteries,  if  any  such 
may  have  been  passed,  upon  questions  which  may 
come  before  this  General  Assembly. 

You  have  been  called  to  this  high  court  by  the  man- 
date of  the  Constitution  of  our  Church.  You  are  mem- 
bers of  a  supreme  Court  of  Commissioners,  each  member 
bearing,  not  a  resolution  of  instructions  as  to  how  he 


61 

shall  vote  upon  questions  arising  liere,  but  which  have 
not  come  judicially  before  your  respective  Presbyteries. 

You  bear  a  solemn  commission  to  this  Assembly, 
which  by  its  express  terms  authorizes  and  directs  you 
*'  to  consult,  vote,  and  determine  on  all  things  that  may 
''come  before  that  body,  according  to  the  iDrinciples  and 
"constitution  of  this  Church,  and  the  word  of  Grod," 
and  not  according  to  anything  else.  (Form  of  Govern- 
ment, Chapter  XXII.,  Section  II.  Minutes  1877, 
page  577). 

Section  XII.  of  the  Form  of  Government  directs 
that  ' '  the  General  Assembly  shall  receive  and  issue  all 
"  appeals,  complaints,  and  references  that  affect  the 
"  doctrine  or  constitution  of  the  Church,  which  may 
"  be  regularly  brought  before  them  from  the  inferior 
"  judicatories,  *  ^  *  and  they  shall  constitute 
"  the  bond  of  union,  peace,  correspondence  and  mu- 
"  tual  confidence  among  all  our  churches."  Accord- 
ing to  Section  V.  of  the  same  Chapter,  "To  the 
"  General  Assembly  also  belongs  the  power  of  deciding 
"  in  all  controversies  respecting  doctrine  and  disci- 
"  pline  ;  of  reproving,  warning,  or  bearing  testimony 
"against  error  in  doctrine;  ^-  -^  ^  of  suppressing 
"  schismatical  contentions  and  disputations;  "^  *  and 
"  the  promotion  of  charity,  truth  and  holiness,  through 
"  all  the  churches  under  their  care."  The  constitution 
puts  especial  responsibility  on  the  General  Assembly, 
respecting  all  matters  which  affect  the  doctrine,  dis- 
cipline, the  purity  and  peace  of  the  Church. 

It  is  very  evident  then,  that  the  framers  of  our  Book 
of  Discipline  and  of  the  Form  of  Government,  inten- 
tionally left  the  way  open  for  passing  the  intermediate 
judicatories,  so  that  cases  affecting  the  doctrine  and 
constitution  of  the  Church,  might  be  taken  directly 
to  the  Assembly,  if  such  a  course  seemed  necessary. 
When,  therefore,  we  come  to  the  Assembly  with  our 


62 

appeal  we  are  following  the  constitutional  method  of 
procedure,  for  which  precedents  are  not  wanting. 

The  General  Assembly  of  1824,  in  answer  to  a  peti- 
tion of  certain  members  of  the  Tammany  Street  Church 
of  Baltimore,  stated  :  "  It  is  unquestionably  the  priv- 
"  ilege  of  individuals  and  members  of  the  Presbyterian 
"  Church,  when  they  think  they  see  the  peace,  purity, 
' '  or  prosperity  of  the  Church  in  danger,  either  from  an 
''  individual,  or  from  an  inferior  court,  to  apply  to  the 
*'  General  Assembly,  in  an  orderly  manner,  for  redress 
''and  direction."     (Minutes  1824,  p.  113.) 

The  Assembly  of  1833  (Minutes  1833,  p.  396),  re- 
sponding to  an  overture  from  the  Presbytery  of  Bal- 
timore in  reference  to  the  practice  of  inferior  judica- 
tories in  carrying  appeals  and  complaints  directly  to 
the  Assembly,  adopted  the  following  resolution: 
''That  the  constitution  of  our  Church  is  so  explicit  that 
*'  it  requires  no  order  of  the  Assembly  in  relation  to 
"  the  case  brought  to  view  in  this  overture."  Dr. 
Moore,  in  the  Presbyterian  Digest,  1886,  p.  740,  states 
in  reference  to  this  deliverance,  that  "the  principle 
"guiding  the  Assembly  seems  to  be  that  where  there 
"is  no  sufficient  reason  for  passing  the  next  su^Derior 
"court,  the  case  should  go  there.  But  where  good 
"reasons  for  carrying  it  directly  to  the  Assembly  are 
"assigned,  it  will  be  entertained." 

The  uniform  practice  of  the  General  Assembly,  in 
judicial  cases,  has  been  to  receive  appeal  coming  to  it 
without  first  going  to  Synod,  if  good  reasons  were 
adduced. 

1.  The  Assembly  of  1816  (Minutes  1816,  p.  626) 
thought  it  reasonable  to  receive  the  appeal  of  the  Rev. 
George  Bourne  from  the  Presbytery  of  Lexington,  on 
the  ground  that  he  preferred  to  be  tried  by  the  Assem- 
bly rather  than  by  the  Synod  (Baird,  p.  166).  And  the 
Assembly  of  1818  refused  to  approve  the  minutes  of  the 


63 

Synod  of  Virginia  expressing  censure  on  the  Presbytery 
of  Lexington  for  allowing;  the  appeal  of  Mr.  Bourne  to 
pass  the  Synod.     (See  Baird,  i\  152.) 

2.  In  the  Assembly  of  1883  (Minutes  1883,  p.  617) 
the  Judicial  Committee  reported  that  since  the  Rev. 
W.  W.  McLane  had  not  given  sufficient  reasons  for 
coming  direct  to  the  Assembly  with  his  appeal  from 
the  decision  of  the  Presbytery  of  Steubenville,  the 
case  and  the  paxiers  pertaining  to  it  be  referred  to  the 
Synod  of  Ohio  ;  but  the  Assembly  declined  to  adopt 
the  report,  and  returned  it  to  the  Judicial  Committee 
with  instruction  "to  prepare  and  issue  the  case  before 
the  Assembly."  (Moore's  Presbyterian  Digest,  1886, 
p.  741.) 

3.  The  Assembly  of  1884  stated,  in  reference  to  the 
appeal  of  the  Rev.  Jared  M.  Chavis,  from  the  Presbytery 
of  Atlantic,  "  that  the  ai3pellant  has  shown  a  sufficient 
reason  for  bringing  his  appeal  to  the  General  Assembly, 
without  first  going  to  the  Synod  of  Atlantic."  They 
reversed  the  decision  of  the  Presbytery,  and  then,  since 
no  testimony  had  been  taken  by  the  Presbytery, 
referred  the  case  to  the  Synod,  with  instructions  to 
take  the  proper  action  in  the  premises.  (Minutes  1884, 
p.  108.) 

I  call  attention  to  this  citation,  as  it  is,  I  believe,  the 
only  judicial  case,  since  the  revision  of  our  Book  of 
Discipline,  which  has  been  sent  down  by  the  Assembly 
to  Synod.  This  exceptional  action  strongly  confirms, 
if  it  does  not  comxDletely  establish,  our  position,  that 
a  judicial  case  involving  doctrine  cannot  be  sent  down 
by  the  Assembly  to  Synod. 

The  charges  in  the  Chavis  case  were  for  alleged  im- 
morality— a  case  in  which  the  decision  of  Synod  is  final. 
In  that  case  the  Presbytery  had  failed  in  its  duty  as  a 
trial  court.  The  appeal  disclosed  such  irregularities  in 
the  matter  of  discipline  that  the   General  Assembly 


64 

sent  a  special  committee  to  visit  the  Presbytery  of 
Atlantic,  to  investigate  and  do  anything  in  its  power  to 
correct  the  same.  The  Minutes  of  the  Assembly  (1884, 
p.  108)  declare  "that  the  appellant  had  shown  a  suffi- 
cient reason  for  bringing  his  appeal  to  the  General 
Assembly  without  first  going  to  the  Synod  of  Atlantic." 
But  as  the  Form  of  Government  makes  the  decision  of 
the  Synod  final  in  all  such  cases,  the  Chavis  case  was 
returned  to  the  Synod  tor  action,  as  should  have  been 
done  in  a  case  involving  moral  and  not  doctrinal  ques- 
tions. 

If  this  case  should  be  referred  by  this  Assembly,  to 
the  Synod  of  New  York,  and  the  majority  of  that 
Synod  should  be  unwilling  to  take  up  and  give  full 
consideration  to  it,  they  might  be  ready  to  listen  to  the 
technical  objection  that  the  Synod  would  have  no 
authority  to  hear  the  case,  upon  the  ground  that  the 
right  of  appeal  to  Synod  had  been  lost,  because  notice 
of  appeal  had  not  been  given  within  the  ten  days 
fixed  by  Section  96  of  the  Book  of  Discipline. 

Under  these  circumstances,  the  final  adjudication  of 
the  case  would  be  deferred  for  two  years,  because  a 
complaint  against  the  actions  of  Synod  on  this  purely 
technical  ground  would  have  to  be  settled  by  the  next 
Assembly,  the  case  again  returned  to  Synod,  and  the 
appeal  from  Synod's  decision  would  come  before  the 
Assembly  tw^o  years  hence. 

I  only  make  this  as  a  suggestion  as  to  what  is  likely 
to  happen  in  case  this  Venerable  Body  should,  for  any 
reason,  take  a  course  which  I  hope  I  have  convinced 
the  Commissioners  is  not  warranted  by  the  facts  or 
by  the  Constitution  of  the  Church. 

4.  In  the  New  School  Assembly  of  1839  a  motion  to 
send  the  appeal  of  Mr.  Lewis  Tappan  from  the  Third 
Presbytery  of  New  York  to  the  Synod,  was  lost,  and 
the  appeal  was  then  entertained  and  issued.  (Moore's 
Digest,  1st  Ed.,  p.  225.) 


65 

These  examples  sufficiently  indicate  what  the  practice 
of  the  Assembly  has  been  with  regard  to  entertaining 
appeals  which  have  come  to  them  without  having  first 
been  before  the  Synod.  Whenever  appellants  have 
given  good  reasons,  the  Assembly  has  received  the 
appeal. 

The  contention  that,  while  an  appeal  of  the  defendant 
may  thus  be  received  for  special  reasons,  no  such 
privilege  can  be  accorded  to  that  of  a  prosecutor,  intro- 
duces a  distinction  which  is  not  recognized  by  the 
constitution  of  the  Church.  The  right  of  appeal  is 
secured  to  both  of  the  original  parties  without  distinc- 
tion. We  have  already  shown  that  in  a  trial  for 
heresy  the  Church  has  far  greater  interests  at  stake 
than  any  defendant  can  possibly  have,  and  is  liable  to 
suffer  vastly  more  from  delay  than  he.  The  Presby- 
terian Church  has  an  equal  right,  with  the  humblest  as 
well  as  with  the  most  distinguished  of  its  members,  to 
make  use  of  all  constitutional  provisions  for  the  preser- 
vation of  its  interests. 

There  are  special  reasons  why  this  appeal 
should  be  received  by  the  assembly  with- 
OUT   HAVING    FIRST    BEEN    TAKEN    TO   THE   SyNOD 

of  New  York. 

In  addition  to  the  reasons  set  out  in  the  appeal,  the 
following  may  be  stated  : 

1.  The  appeal  relates  to  doctrines  which  are  abso- 
lutely fundamental  to  our  system. 

The  attempt  to  convince  the  Church  that  the  doc- 
trines at  stake  are  non-essential  or  unimportant,  and 
that  the  contention  about  them  is  but  a  "strife  of 
"  tongues,"  has  not  been  successful.  The  Christian 
world,  and  especially  the  people  of  our  own  com- 
munion, very  largely  consider  them  vital.  From  the 
time  when  Dr.  Briggs  delivered  his  Inaugural  Address 
until  now,  a  strong  conviction  in  all  parts  of  our  Church 


has  been  growing  stronger  that  his  blow  struck  at  fun- 
damental doctrines. 

The  sole  supremacy  of  the  Holy  Scriptures  in  mat- 
ters of  faith,  the  veracity,  genuineness  and  trustwor- 
thiness of  that  Scripture,  and  the  question  whether 
the  process  of  redemption  is  limited  to  this  life,  or  is 
to  be  extended  to  the  world  beyond  the  grave,  are  in- 
volved in  this  discussion.  These  are  considered  vitally 
important  by  evangelical  Protestants,  and  particularly 
by  Presbyterians,  since  they  concern  not  only  our 
creed,  but  also  our  entire  method  of  presenting  the 
Gospel.  The  publication  of  Dr.  Briggs'  views  has 
given  rise  to  widespread  alarm  and  contention.  It  is 
the  duty  of  the  Assembly  to  receive  and  issue  this 
appeal  for  the  sake  of  the  purity  and  peace  of  the 
Church. 

ISTo  Presbytery  or  Synod  can  settle  these  doctrines  for 
the  Presbyterian  Church;  the  Assembly  alone  rep- 
resents that  Church ;  it  is  the  only  court  to  which 
this  appeal  should  come.  Since  the  Assembly  is  not 
a  court  of  original  jurisdiction,  it  was  necessary  that 
the  matter  should  first  be  passed  on  by  such  a  court ; 
but  now,  since  it  has  been  tried  by  a  court  of  original 
jurisdiction,  there  is  no  reason  why  it  should  be  sent 
to  another  inferior  judicatory  which,  under  the  Con- 
stitution, cannot  render  a  final  decision. 

2.  The  case  is  fully  ripe  for  final  judgment  by  this 
Assembly.  If  the  Commissioners  were  not  acquainted 
with  the  merits  of  the  case,  there  might  be  reason  for 
delay.  But,  aside  from  the  fact  that  the  questions 
involved  have  been  before  the  Church  for  more  than 
two  years,  and  have  been  discussed  both  by  the  secular 
and  the  religious  press,  the  Defence  of  Dr.  Briggs  and 
the  Arguments  of  the  Committee  of  Prosecution  have 
been  put  into  the  hands  of  all  of  our  ministers,  and  of 
many  of  our  elders  ;  there  is  good  reason  for  concluding 
that  the  brethren  are  well  informed  on  the  subjects 


67 

involved  in  tlie  case.  Like  the  children  of  Issachar, 
the  members  of  this  Assembly  have  ^'understanding 
"  of  the  times,  to  know  what  Israel  ought  to  do." 

3.  It  is  imperatively  necessary  that  a  final  decision 
in  this  case  be  reached  at  the  earliest  possible  date. 
This  is  requisite  alike  for  the  purity  and  peace,  and 
the  prosperity  and  usefulness  of  the  Church.  Debate, 
contention,  and  uncertainty  should  not  be  protracted 
any  longer  than  is  absolutely  necessary.  Only  a  little 
while  ago,  all  seemed  to  be  agreed,  respecting  this 
matter. 

Not  a  few  of  those  urging  the  now  famous  ''peace 
and  work"  plea  were  so  deeply  impressed  with  the 
fact  that  this  conflict  interferes  seriously  with  the  peace 
and  work  of  our  churches,  that  they  desired  the  mat- 
ter to  be  dropped  immediately  after  the  Presbytery  of 
New  York  had  rendered  its  decision  in  this  case. 

We  did  not  agree  with  them  in  detail,  believing  that 
it  would  be  better  to  wait  four  months  longer,  bring 
the  case  to  this  Assembly,  and  obtain  a  decision  which 
would  be  more  potential  in  allaying  the  unrest  and 
disquiet  of  our  people  than  that  of  the  Presbytery 
of  Wew  York  could  possibly  be. 

But  we  agree  with  them  as  to  the  necessity  of  dis- 
posing of  this  matter  finally  and  authoritatively  as 
soon  as  possible  ;  and  since  the  Assembly  alone  can 
render  a  final  and  authoritative  decision  on  questions 
of  this  kind,  we  ask  it  to  render  that  decision  here,  and 
at  this  time. 

Consistency  is  not  the  distinctive  quality  of  those 
brethren,  who  less  than  four  months  ago  insisted  with 
intense  earnestness  that,  for  the  sake  of  peace,  work 
and  liberty,  the  discussion  should  cease  at  once.  They 
now  insist  with  a  zeal  no  less  earnest,  that,  to  guard  the 
interests  of  our  beloved  Church,  the  case  should  be 
delayed  another  year,  and  first  be  sent  to  the  Synod 


68 

of  New  York.  If  their  judgment  of  four  montlis  ago- 
was  correct,  then  their  present  judgment  cannot  be, 
for  no  evident  change  of  sentiment  in  either  Church 
or  defendant  has  taken  place  since  that  time. 

But  why  this  determined  purpose  to  keep  this  case 
from  coming  before  the  General  Assembly,  and  to  send  it 
to  the  Synod  ?  There  would  be  reason  in  this  were  it  a 
case  respecting  morality,  for  then  the  Synod  would 
have  the  constitutional  right  to  make  a  final  decision. 
It  cannot  do  so  in  this  case,  since  it  involves  the 
doctrines  of  the  Church,  which  the  Assembly  only 
can  finally  decide.  This  shows  that  there  is  no 
desire,  on  the  part  of  those  just  referred  to,  to 
secure  a  settlement  of  the  matter  at  issue  by  the 
only  body  which  constitutionally  can  settle  it  for  the 
Church.  The  prerogatives  and  privileges  of  our  judi- 
catories have  been  mentioned ;  but  the  court,  whose 
prerogatives,  privileges  and  dignity  have  been  attacked 
in  connection  with  this  case,  is  not  the  Synod  of  New 
York,  but  the  General  Assembly  itself. 

So  earnest  is  the  attempt  to  keep  this  case  from  com- 
ing before  the  Assembly  for  decision,  that  the  disrup- 
tion of  the  Church  is  threatened  if  the  Assembly 
should  entertain  and  issue  it.  But  this  threat  argues 
on  the  one  hand,  conscious  weakness  on  the  part  of 
those  who  make  it,  and  on  the  other,  a  deliberate  in- 
tention to  unduly  influence  the  Assembly  so  as  to 
prevent  it  from  giving  an  honest  expression  of  opinion. 

A  wise  and  manly  settlement  of  this  case  by  the  As- 
sembly will  purify  and  strengthen  our  Church  and  be 
the  beginning  of  a  long  period  of  peace  and  prosperity. 

4.  This  case  involves  the  legal  construction  of  the 
ordination  vow  of  every  minister,  elder  and  deacon  in 
our  Church ;  it  involves  what  they  may  believe  and 
teach  as  the  faith  of  the  Church,  under  the  terms  of 
that  vow.     The  Presbytery  of  New  York  has  decided 


69 

in  tlie  case  of  Dr.  Briggs  that  a  Presbyterian  minister, 
elder  or  deacon  may  believe  and  teach,  in  harmony 
with  that  vow,  certain  doctrines.  The  Presbytery  of 
Cincinnati  has  held  in  the  case  of  Dr.  H.  S.  Smith  that 
certain  of  these  views  cannot  be  taught  without  a 
violation  of  the  ordination  vow.  What  the  faith  of 
the  Church,  as  to  the  fundamental  doctrines  involved  in 
this  case,  is,  and  what  is  embraced  within  the  terms  of 
the  ordination  vow,  and  the  liberty  in  teaching  allowed 
by  the  Church,  can  only  be  determined  by  the  General 
Assembly. 

The  importance  of  an  immediate  decision  of  these 
matters  will  be  recognized  at  once,  when  we  con- 
sider that  during  the  coming  year  at  least  two 
hundred  and  fifty  ministers  will  be  received  into  our 
Church  and  from  three  to  five  thousand  elders  and 
deacons  elected  and  ordained.  Those  ministers,  elders 
and  deacons  who  take  the  ordination  vow,  according 
to  the  decision  of  the  New  York  Presbytery  in  this 
case,  have  a  right  to  believe,  until  that  decision  is 
reversed,  that  they  can  hold  the  views  of  Dr.  Briggs 
and  teach  them  without  transgressing  the  limits  of 
liberty  allowed  under  our  Constitution  to  scholarship 
and  opinion. 

Is  it  fair  or  just  to  leave  the  terms  of  the  ordination 
vow  and  the  doctrines  involved  in  this  case,  unsettled 
for  another  year,  for  this  would  be  the  result  of  not 
entertaining  the  appeal  or,  after  it  has  been  entertained, 
sending  it  to  the  Synod  ?  Would  it  be  right  or  honest 
to  permit  ministers,  elders  and  deacons  to  enter  the 
Church  during  the  next  year,  believing,  as  they  would 
have  a  right  to  believe,  with  the  judgment  of  the  New 
York  Presbytery  unreversed,  that,  under  the  terms  of 
their  ordination  vow,  they  can  believe  and  teach  the 
views  held  by  Dr.  Briggs  ?  Then,  in  case  the  Assembly 
of  1894  should  reverse  the  judgment  of  New  York 
Presbytery,  it  would  place   those   who   have  become 


70 

ministers,  elders  and  deacons  in  the  position  of  being 
compelled  either  to  renounce  their  views,  or  to  retire 
from  the  Church,  or  subject  themselves  to  discipline  to 
expel  them  from  the  Church. 

The  Church,  in  all  its  agencies,  must  go  on,  it  must 
license  more  ministers,  elect  and  ordain  more  elders 
and  deacons.  If  no  other  consideration  existed  than 
this,  it  would  be  of  paramount  importance.  Fairness 
and  justice  to  those  whom  the  Church  invites  into 
official  station  would  seem  to  require  this  Judicatory 
to  entertain  this  appeal  and  determine  what  the  Church 
holds  upon  the  fundamental  questions  at  issue. 

5.  As  a  final  reason  why  the  Assembly  should  enter- 
tain this  appeal  now,  we  urge  that  great  and  wide- 
spread injury  is  certain  to  come  from  protracted  delay. 
It  will  tend  to  unsettle  faith,  especially  among  our 
young  people ;  it  will  injuriously  affect  the  train- 
ing of  our  young  men  for  the  ministry,  and  will  result 
in  the  sjpread  of  false  doctrines. 

The  Presbytery  of  New  York,  in  the  final  judgment, 
says:  "There  are  truths  and  forms  with  regard  to 
"which  men  of  good  character  may  differ."  No  one 
disputes  that.  But  the  statement  necessarily  implies 
that  there  are  also  truths  and  forms  in  regard  to  which 
good  men,  especially  ministers  of  the  Presbyterian 
Church,  should  not  differ  ;  and  the  the  question  is 
whether  or  not  the  truths  and  forms  contained  in  this 
case  are  of  that  kind.  The  great  majority  of  Presby- 
terians believe  that  they  are.  The  verdict  of  the  Pres- 
bytery of  New  York  confirms  that  belief  rather  than 
otherwise  ;  for,  while  they  acquit  him,  they  distinctly 
disapprove  the  critical  and  theological  views  of  Dr. 
Briggs,  for  which  he  has  been  put  on  the  defence. 
Why  disapprove  these  truths  and  forms  if  Presby- 
terian Ministers  and  elders  may  differ  in  regard  to 
them? 


71 

If  the  doctrines  presented  by  Prof.  Briggs  be  errone- 
ous, as  we  verily  believe,  tlien,  through  delay,  ''heret- 
ical opinions"  are  sure  to  "gain  ground,"  and  our 
Church  will  be  affected  injuriously  through  the  con- 
tinuance of  uncertainty  and  doubt,  and  of  suspicion 
and  strife. 

In  closing,  Moderator,  let  me  thank  you  and  the 
General  Assembly  for  your  indulgent  attention  to  this 
long  and  sometimes  technical  argument.  The  laws  of 
our  Book  may  be  imperfect,  for  they  are  human  laws  ; 
our  interpretation  of  the  law  may  be  defective,  because 
it  is  a  human  interpretation  ;  but  these  laws  and  their 
interpreters  may  be  the  means  of  advancing  the  King- 
dom of  God.  And,  having  been  faithful  to  the  rights 
and  laws  of  His  Church  on  earth,  you  shall  doubtless 
see  the  effects  of  this  fidelity  in  that  heavenly  empire, 
the  realm  of  glory,  to  which  He  will  one  day  summon 
His  elect. 


Date  Due 

-  --  ^ 

^ 

.  •  ^.\^'( 

u.-.*.                      r- 

ai       ^: 

''<C{/1 

/r 

■    r 

r 

-> 

f) 

